This suit is brought to recover of the defendants $1,255, the value of four boxes of merchandizes, received by them on the 9th July, 1864, to be shipped on board steamer Morning Star, from New York to New Orleans, and alleged not to have been delivered according to the bill of lading.
The answer contains, in substance, a general denial and averments that the bill of lading was not a contract of shipment intended for the Morning Star; that, on the 9th July, 1864, and for a considerable time immediately preceding and subsequent, the said steamship was not on the berth in the North River, at New York, receiving goods, but was at the dock in the East River, rebuilding; that there was no one authorized to receive freight and sign bills of lading; that the fact of her being* out of the trade, and the Electric Spark replacing her between New York and New Orleans, was well known; that the said freight was actually delivered by plaintiff’s agent to the steamer Electric Spark, in New York; that said steamer, on her way to New Orleans, was captured by Confederate cruiser Florida, and that, in consequence, the said freight was not delivered, without any fault of theirs.
The District Court, after hearing the testimony, gave judgment in favor of .the defendants, and the plaintiff appealed.
On the trial below, the Court properly admitted parol evidence to contradict or vary the bill of lading, which was merely prima facie evidence.
The testimony shows that, at the date of the bill of lading, 9th July, 1864, the Morning Star was undergoing repairs in East River, and had been so for at least four weeks previously, and remained undergoing re-' pairs there until September, 1864; that the Electric Spark took her place, and was advertised by the company to sail for New Orleans, on the 9th Jtdy, 1864;’ on this day she lay side of the company’s wharf, in sight of every person who delivered goods for shipment; she had been advertised from June 28th, 1864, to the 9th July, inclusive, to sail from New York to New Orleans on the 9th July, 1864; she was so advertised in 'the Journal of Commerce, Commercial Advertiser, Evening Post, Daily World, New York Daily Times, and the New York Herald, for some eleven days previous to her sailing. From the 6th of June, 1864, to the 24th September, 1864, the Morning Star was not in a condition to go to sea. The bill of lading shows that the goods were to be shipped on the Morning Star. Previous to obtaining this bill of lading, plaintiff’s agent in New York had obtained a permit to ship the goods by the Morning Star. The *356Electric Spark was considered a very good, seaworthy vessel, but was not so fast and so large as the Morning Star.
After having carefully examined the testimony, we are of opinion that plaintiff’s agent’s consent was impliedly and constructively given to ship the goods on the steamer Electric Spark. This agent sent the goods to the steamer by his cart-man, who delivered them to the Electric Spark, in lieu of the Morning Star, the latter not being in port, of course, and the former occupying her place. The plaintiff’s agent states in his testimony: “I delivered the goods, mentioned in the bill of lading, myself. I saw them delivered, and I actually delivered them; my cart-man received them.” The delivery, then, of the goods to the Electric Spark, by his cart-man, was his own act, and binding on his principal. The bill of lading is dated 9th July, 1864, showing that the goods were delivered on the very day that the Electric Spark was to leave. She was captured at sea and destroyed, with her whole cargo, by the cruiser Florida.
We are of opinion that the defendants have satisfactorily accounted for the non-delivery of the goods to the plaintiff, and that, under the circumstances, they are not responsible. The case would be different, if the goods had been actually and really delivered to the Morning Star, and reshipped by her on the Electric Spark.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.