Harrison and Another v. Hixson and Another, 4 Blackf. 226

Dewey, J. This was an action on the case by the plaintiffs in error against the defendants in error. The declaration contains four counts.

Three of them are substantially the same, and charge that the plaintiffs, at the request of the defendants, caused to be delivered to them, on board the schooner Post-Boy, a quantity of wheat to be carried by them from Michigan City to Buffalo in the state of New-York, and there to be delivered for the plaintiffs, for a certain freight or reward, the dangers of the seas only excepted; that the defendants received the wheat for that purpose, and that although the schooner sailed from Michigan City on her voyage to Buffalo, the wheat was lost through the negligence and mismanagement of the defendants.

The fourth count alleges that the defendants were common carriers, and as such received a quantity of wheat of the plaintiffs in their schooner called the Post-Boy, to be carried from Michigan City to Buffalo, but so negligently managed their vessel that the wheat was lost on the voyage. Plea, general issue, jury trial, and judgment for defendants.

On the trial of the cause the plaintiffs,—having proved that the defendants were the owners of the. schooner Post-Boy, that one of them, Hixson, was her commander, that he had as executed a bill of lading, and that the wheat named in it was the same mentioned in the declaration,—offered it in evidence to the jury, and at the same time offered to prove that one Miller, (mentioned in the bill of lading,) was their forwarding merchant, that the wheat specified in it was their property, and that it was consigned to Eaton, a commission merchant, to be sold on their account.

The bill of lading and the explanatory parol testimony, having been objected to by the defendants, were excluded from the jury by the Court. The plaintiffs excepted, and then proposed to prove by parol, that the wheat mentioned in the fourth count of the declaration, was delivered by the plaintiffs to the defendants to be by them conveyed, as common carriers, as therein alleged. This proof was also upon the objection of the defendants rejected; and exception taken by the plaintiffs.

The bill of lading acknowledged the shipment on board the Post-Boy, Hixson master, of 413 bushels of wheat in good order by Miller for A. Eaton, Buffalo, sent by the plaintiffs, to be delivered in like good order at the port of Buffalo, (the dangers of the lakes and rivers excepted,) to A. Eaton or assigns, he paying freight.

In support of the decision of the Circuit Court, in excluding the bill of lading and the explanatory testimony, it is contended that there is a fatal variance between the undertaking of the defendants as stated in the declaration—“the dangers of the' seas only excepted,”—and that contained in the bill of lading —“the dangers of the lakes and rivers excepted.”' We do not consider the variance to be material. The meaning- of the two expressions, as applied to our inland navigation, is the same.

Had the declaration stated the exception in either set of words, and the bill of -lading had contained no exception at all,—and vice versa,—the objection to the admissibility of the evidence should have been sustained. But as the case stands, there was no variance which should have excluded 'the testimony. It is also urged that the bill of lading was inadmissible, because it proved the ownership of the wheat not to be in the plaintiffs, but in Eaton the consignee. It is true that a bill of lading with no qualifying terms, is prima facie evidence that the property consigned belongs to the consignee. 1 Ld.

Raym. 271.—6 East, 21. But it is not conclusive evidence of that fact; it is susceptible of explanation by rebutting testimony, showing the consignor to be the real owner of the property. 3 Barn. & Adol. 523, Scaif et al. v. Tobin.—2 M. & M. 106, Bates v. Todd.—6 East,-21, n.—7 Mass. Rep. 301.—1 Johns. R. 1.—Ib. 223.-6 Cranch, 338.—1 Wheat. 25.-2 Dall. 180.— 20 Johns. R. 226. The plaintiffs were entitled to the benefit of the bill of lading to prove the delivery of the property to the defendants, and the terms on which they received it.

The Circuit Court erred in rejecting the bill of lading and the explanatory evidence. C. Fletcher, O. Butler, and S. C. Sample, for the plaintiffs. C. W. Ewing, J. Rariden, and J. S. Newman, for the defendants. • It was also error to reject the parol testimony offered in support of the fourth count of the declaration. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.