Porter v. Ocean Steamship Co.

223 Mass. 224 | Mass. | 1916

Braley, J.

The plaintiff bases her cause of action upon a contract of shipment made in this Commonwealth, and, if the straight bill of lading issued by the defendant states the contract, the goods having been delivered in accordance with the shipping directions therein, the action cannot be maintained. Singer v. Merchants Despatch Transportation Co. 191 Mass. 449. Uniform bills of lading act, St. 1910, c. 214, §§ 4, 10.

The undisputed facts are, that when the expressman, engaged for this purpose by the plaintiff, delivered the box of clothing it was plainly and distinctly marked, “Mary Williams, Munnerlyn, Georgia, Burke County,” the name and place of residence of the plaintiff’s sister for whom the goods were intended. And, upon receiving the box with payment of the charges of transportation, the bill of lading issued to and accepted by the expressman gave his name as the shipper and the name of the consignee as “Mary Williams Destination, Waynesboro State of Ga. County of Burk,” to whom the goods were ultimately delivered. The same day the plaintiff paid the expressman, received the bill of lading, and from her own testimony it appears that, although she knew the goods were billed for Waynesboro, she neither protested, nor endeavored to repudiate the bill of lading until some three months later, when, having been informed of what had been done, she notified the defendant, that because the directions on the box had not been followed there had been a misdelivery causing the loss of the goods, for which reimbursement was demanded.

If no bill of lading had issued and been accepted at the time of shipment, this position would be well taken, for upon acceptance of the goods and payment of the charges an oral contract of affreightment could have been found. But, neither the plaintiff nor her agent having made any objection to its terms, and no fraud appearing, nor evidence of the making of any previous agreement, the defendant had the right to rely on the bill of lading concurrently issued as expressing the entire contract, which cannot be varied by parol testimony. Boynton v. American Express Co. 221 Mass. 237, 240. 4 R. C. L. Bills of Lading, § 22.

While the plaintiff, as an undisclosed principal from whom the consideration moved, can sue in her own name to enforce the rights her agent acquired when acting in her behalf, she cannot affirm in part and disaffirm in part. Eastern Railroad v. Benedict, 5 Gray, 561, 562. Union Freight Railroad v. Winkley, 159 Mass. 133, 135. Boynton v. American Express Co. 221 Mass. 237.

The jury accordingly should have been instructed, as asked in the first request, that upon the pleadings and the evidence the plaintiff could not recover. Hoadley v. Northern Transportation Co. 115 Mass. 304. Samuel v. Cheney, 135 Mass. 278. Singer v. Merchants' Despatch Transportation Co. 191 Mass. 449. Merchants Despatch Transportation Co. v. Furthmann, 149 Ill. 66.

Exceptions sustained.