3 Keyes 217 | NY | 1866
This is an action to recover the value of a quantity of gold-dust shipped by the defendant’s line of steamers, from San Francisco to Mew York, on the 14th of March, 1851. It is alleged in the complaint, not denied in the answer, and established by the evidence, that the defendant was a common carrier of goods between the points named, and that he received the property in question in that capacity. The treasure never reached the city of Mew York, and the plaintiff has repeatedly demanded it of the defendant, and after the lapse of some months has brought the present action to recover its value.
A bill of lading was executed by the defendant’s agent at San Francisco, giving the marks and numbers upon the property, its alleged value, and in the margin, expressing a portion of the contract as follows: “Freight through to Mew York 1-J per cent, $50.29, and five per cent primage, $2.51— paid, $52.80. Received payment through to Mew York, O. Charlick, per Grane.” The body of the bill of lading contained the same general contract, but with a qualification of the ordinary contract of carriage, upon which the questions presented in the case are made. It was in these words: The property is * * “ to be delivered in like good order and condition at the port of Mew York, dangers of the seas
The defendant’s counsel claims error in the rejection of certain proof offered by him as follows: “ That it was the custom of shippers of treasure to insure it against risks upon the Isthmus; that there was a custom in reference to the
The contract in question was clear and distinct, free from all ambiguity, open to no doubt whatever. On the clause of exemptions from perils, the court ruled the construction as matter of law, and ruled it in conformity with the defendant’s views. There was, therefore, no room for proof of custom. A clear, certain and distinct contract is not subject to modification by proof of custom. Such a contract disposes of all customs and practices by its own terms, and by its terms alone is the conduct of the parties to be regulated and their liability to be determined. (Schooner Reeside, 2 Sum. 567; Wadsworth v. Alcol, 2 Seld. 64; Westcoll v. Thompson, 18 N. Y. 367; Angel on Common Carriers, § 229.) There was no error therefore in the rejection of the evidence thus offered.
The defendant’s counsel also requested the court to charge the jury “ that the true construction of the bill of lading is, that the transportation on the Isthmus by road and river navigation, was to be at the risk of the plaintiff, and that so far as the Isthmus was concerned, the defendant was a bailee for hire and not a common carrier, and that the plaintiff cannot recover unless he proves that his loss was by the negligence of the defendant or his agents.” This charge the judge declined to give. As I have stated, it was expressly alleged in the complaint that the defendant received the goods in his capacity of common carrier, upon a contract to transport them to Hew York, and that this allegation by not being denied in the answer, was admitted by the defendant. The bill of lading introduced in evidence also contained an
Some other questions were raised, but they have no merit. The points discussed are all that require serious consideration.
The question was finally submitted to the jury upon the only point of fact existing in the case. We are not allowed to examine into the soundness of their determination. It is conclusive upon us. Ho errors of law have intervened, and the judgment must be affirmed.
All the judges concurring,
Judgment affirmed.