The only question of law in this case is, whether the referee decided correctly in permitting the plaintiff to show that the property was in a damaged condition when he received it on board; he having admitted in writing, by signing the bill of lading, that he received it in good order. It is singular that such a question, which one would suppose to be of frequent occurrence in commercial countries, should not long ago have been put at rest; but such does not seem to be precisely the case, either in England or in this country. In Barrett v. Rogers (7 Mass., 297), the question related to damage to velvets packed in cases. The court charged the jury that the admission in the bill of lading was not conclusive evidence that they were in good order when put on board. The ruling was approved *Page 533 on a motion for a new trial, on the ground that the goods were not open to inspection; but a strong intimation was thrown out that it would have been held otherwise had they been in a condition to be examined by the master. (Clark v. Barnwell, 12 How., 272.) Bates v. Todd was determined at nisi prius before Chief Justice TINDAL, and goes further than any other case I have seen to sustain the decision of the referee in this case. A quantity of pepper shipped in the East Indies had been delivered one hundred bags short of the quantity acknowledged in the bill of lading. The defendant, the ship-owner, offered to prove that the master was induced to sign the bill of lading by the fraud of the plaintiff's agent; and the plaintiff insisted that the bill of lading was conclusive evidence. The chief justice said he was of opinion that, as between the original parties, the bill of lading was only a recital, liable to be opened by the evidence of the real facts; and he left the question to the jury whether the bags which were deficient were ever really received on board. (1 Moo. Rob., 106.) If parol evidence as to quantity is admissible, I can perceive no good reason why it should not be, when the question relates to the condition of the goods. If there is any difference, the reason is stronger for holding the ship-owner according to the document, as to quantity, than upon any other question. The author ofAbbott's Treatise on Shipping considers the case of Bates v.Todd as warranting the position which is stated in general terms, that as between shipper and ship-owner the bill of lading is not conclusive. (Abbott on Ship., by Story, 324.) InGreenleaf's Evidence the same rule is laid down, upon the same authority. (§ 305.) In Price v. Powell, in this court, BRONSON, J., assumed the rule to be as stated in these books. He said that "as the master signed the usual bills of lading stating that the property was shipped in good order and well conditioned, the burden lay upon the defendants to show that the marble (which was the property in question) was broken *Page 534 before it came to their hands. The case, however, does not show that they gave or offered any evidence on that point." (3Comst., 325.) In Dickerson v. Seelye (12 Barb., 99), the defendant purchased a cargo of coals from the consignor by the bill of lading, and paid according to the quantity contained in it, but upon delivery it fell short. In an action by the vendor the supreme court held that the plaintiff could not be permitted to prove that the deficiency was occasioned by an error in the bill of lading, and that the quantity stated in it had not been put on board. This was plainly right; and the case is mentioned here only because the court took occasion to state that, as between the shipper of the goods and the owner of the vessel, a bill of lading might be explained so far as it is only a receipt, that is, as to the quantity of the goods shipped and their condition, and the like. The judgment in that case was placed upon the ground that the defendant was an assignee of the bill of lading for value. But I am of opinion that upon principle the parol evidence was correctly received. The condition in which the goods were was not a part of the contract. It was a recital of a circumstance connected with the consideration, and is within the doctrine which permits a party to explain or contradict a receipt, or the acknowledgment of consideration in a conveyance. (Cases in Cowen Hill's Notes, 213 to 218.) It is very high and authentic evidence of the quantity and condition of the goods; but is only evidence, and not, between the primary parties, an estoppel. The principle is consistent with that which protects the written undertakings of parties from being changed by oral testimony. The substance of the carrier's contract was to transport and deliver the property at its destination, without causing or permitting any damage to be done to it. Parol evidence could not be allowed to change the effect of this undertaking. (Creery v. Holly, 14 Wend., 26.) The other part of the bill is only the acknowledgment of a fact, *Page 535 which, though strong evidence against him, may be overcome by satisfactory proof that it was erroneous.
The other point relating to a question of fact, was determined against the defendant by the referee. The plaintiff was prevented from carrying the corn to the place to which it was consigned, by the request of the defendant, made to the captain, that it should be left short of that point. Niether the plaintiff nor the captain consented to waive the contract, but on the contrary were ready to perform it. They were prevented from doing so by the intervention of the defendant. He had sold the cargo to be delivered at a point short of the terminus to which it was shipped, and required the delivery of it there. He thus waived the performance of the entire voyage and became liable to pay the stipulated freight. (Case of the Ship Hooper, 3 Sumner, 542.)
The judgment should be affirmed.
The whole court concurred.