51 N.Y. 410 | Commission of Appeals | 1873
The referee found that 7,200 bushels of corn were shipped on the plaintiff’s boat at Buffalo, and that he delivered the same quantity at Albany. It is claimed on the part of the appellant that the finding, that plaintiff delivered 7.200 bushels of corn at Albany, is against the undisputed evidence, and therefore erroneous, and this is the first question to be considered. The defendant m his answer admitted that 7.200 bushels were shipped upon the boat at Buffalo, and ho cannot, therefore, dispute the truth of that admission. The
But if we should hold that the proof positively established that only 7,128f$- bushels were delivered at Albany, the defendant would still be without a defence. There was nc
It'is claimed on the part of the appellant that his view of this clause in the bill of lading is strengthened by the other clause, which provides that “ any excess in the cargo to be paid for to the carrier by the consignees.” I do not perceive the precise purpose of this clause, unless it was to provide that the carrier should receive freight upon any additional quantity above what is specified in the bill of lading. If it was intended by the parties that the carrier should have, as his own, the value of any corn over and above the, amount
Hence, whether upon the evidence of this case we hold that the plaintiff delivered 7,200 bushels at Albany, or that he delivered there a less quantity, but all he received at Buffalo, we reach the same conclusion, adverse to the defendant.
The only remaining question is whether the defendant was the proper person to be sued for the freight. This corn was, by the bill of lading, to be delivered to the consignee upon payment of freight; and, in such case, the consignee receiving the cargo becomes liable to pay the freight. (Merian v. French, 4 Denio, 110.) It does not appear clear to me, under these bills of lading, who was the consignee named in them. But the defendant, in his answer, admitted that ho was the consignee, and that the corn was delivered to him. Hence, he became liable for the freight.
This Anew leads to an affirmance of the judgment, with costs.
All concur.
Judgment affirmed.