Glass v. Goldsmith

22 Wis. 488 | Wis. | 1868

Dixon, C. J.

It is well settled as between the original parties, the shipper of the goods and the owner of the vessel, that a bill of lading, like other receipts, is open to explanation, so far as it is a receipt, that is, as to the quantity of the goods, their condition, and the like. Ellis v. Willard, 9 N. Y., 529; and Strong v. Railway Co., Sup. Ct., Mich., Am. Law Reg., Sept., 1867, and cases cited. The jury in this case, upon evidence, which is not claimed to have been insufficient, have found that there was a mistake in the bill of lading as to the quantity of wheat shipped; but, as the defendant, the shipper of the wheat, held the warehouse receqsts of Blake & Son for the wheat before it was shipped, which receipt, for the full amount of wheat specified in the bill of lading, he surrendered- to Blake & Son on delivery to him of the bill of lading, and without, as he testifies, knowing anything about the mistake, it is contended that the plaintiffs ought to have been precluded from showing the mistake; and that an instruction of the court to the jury, that they were to inquire as to the whole amount actually delivered on board the vessel, was erroneous. This is the principal question to be considered in the case. It is argued that the warehouse receipts were valuable evidence of the defendant’s right to the wheat; that the surrender of these to the warehousemen destroyed this evidence, and so far divested the title of the defendant that the warehousemen could pass a good title to a third party, and that thus the defendant would be remitted to his action against the warehousemen for the value of the property, m which action the burden of proof would be upon him to overcome the prima facie evidence afforded by the production of the receipts in their hands. This is about all there is of the objection; the burden of proof has been changed. Is this such a change in the situation of the defendant, caused by the mistake in ¡the bill of lading, as ought to make the bill of lading conclusive between these parties? We are cited to no authority to this effect, and we. know of none. It seems clear to us that it is not, and consequently that there was no error in the instructions given upon this part of the case.

The four special instructions asked by the defendant were properly refused, because the placing of the wheat in the cars in the warehouse, or on the dock, was not a delivery to the carrier, or on hoard the vessel, so as to make the carrier liable.

By the Court. — Judgment affirmed.