Opinion on Rehearing.
It is not, as counsel for appellant in a petition for rehearing seem to think, the opinion of this court that evidence is admissible to show what the secret intention or meaning of parties to a contract was. But the court will, in' construing the contract, place itself in the shoes of the parties, in order that it may read the contract from their standpoint; and it will hear evidence as to the significance of technical or local expressions. So doing the court below permitted the following testimony to be given:
“ Q. How did you come to bill this as gas reservoir material for shipment ?
(Objection; overruled; exception.)
.A. We were so instructed by Mr. Stanton, contracting agent of the Santa Fe road, after going through all that material; it was right on the place to be shipped, and he said under their tariff sheet it is the only head it can come under, because it is the same material described in their own tariff sheet as gas resefvoir material, and could not find any other head in their tariff sheet, so he instructed us to bill it as gas reservoir material, because there was no other material included in that lot that would not be classified as gas reservoir material, although it was not used as a gas reservoir, no more than a boiler is different from a water-tank; although a water-tank is not a boiler, the material is the same.”
This testimony was undisputed. It thus appears that appellee wrote the words “ gas reservoir material,” under direction of the agent of the appellant, as proper words to describe the articles actually shipped.
To arrive at the intent, not of one, but of all the contracting parties, is always the object of the court; not a secret intent of one, but what each knew was meant and intended that the words used should express.
It is the case that the witnesses who testified that the articles shipped came under the general description of gas reservoir material and were substantially the same as gas reservoir material, did not specifically testify that the articles were so known in any business; but they were business men accustomed to deal in such material, and their competency to speak upon this matter does not seem to have been questioned. The real question in this regard was not whether such expression correctly described the shipment, but what did each of the parties intend and mean by such expression. About this there was no doubt and no dispute.
Appellant does not deny having made the alleged contract of shipment, but it insists that it is not bound thereby because it alleges that the goods were “ falsely described.”
The goods were not “ falsely described.” That expression in the bills of lading and in the “ Interstate Commerce Act ” does not mean a merely incorrect description. The pains and penalties of the- law are not intended for those who in good faith incorrectly describe or bill goods. In this case in the utmost good faith appellee billed these articles as “ gas reservoir material.” Such billing was made in pursuance of instructions given them by appellant; when the shipment was at an end another agent of appellant decided that the consignment was incorrectly, or, as appellant contends, falsely billed; this was a thing which,, as against appellee, he had no power to do.
Counsel for appellant urge that the record does not show that appellee consulted other railroad companies concerning the shipment. The original brief of the same counsel contains the following: “ When the goods were ready for shipment, Mr. Goetz, after consultations with various freight men, decided to send them by the appellant line.” The record shows that Mr. Goetz testified that prior to shipping the goods, he had conversations with several soliciting agents of different roads, among others with Mr. Stanton, the agent of appellant.
If, as contended by appellant, the contract it made is void, then the rate would be such" as should under the tariff have been made.
We see no warrant for rating the articles shipped as machinery; while we do find that most, if not all of such articles, if described separately as steel and iron angle and channel beams, columns and girders, bar or rod iron, boiler iron, plate, punched, bolts and rivets, would, under the transcontinental tariff, have been rated at $1.15, the amount appellant and appellee agreed to.
Counsel again urge that only the consignor named in a bill of lading can bring suit thereon; and cite from Dicey on Parties, the rule that “ When there exists an express agreement with the consignor, he, as being the person with whom the contract is made, must be the plaintiff in an action against the carrier.”
The rule is correctly stated. The consignor is the person who actually consigns the goods; not necessarily the person in whose name a bill of lading is made.
A bill of lading, if there be no shipment, does not constitute a contract; a bill of lading without consideration therefor, is a mere piece of paper; there must, to constitute a contract, be a consideration as well as parties. The whole subject is admirably treated in Dicey on Parties, at page 97, following rule 11.
The application for a rehearing will be denied.