23 F. Cas. 549 | D. Mass. | 1862
This libel is brought to recover freight, also on a claim for storage. In regard to the claim for freight, the libel charges the defendants, as the parties contracting, for the carriage of this lumber. It does not set out the bill of lading, or refer to it or its contents. The first question to be considered is, have the libellants proved such a contract as they have alleged? The respondents allege that this cargo was carried under a bill of lading. which they set up, and which is in the case. This bill of lading is a written contract, and the cargo was carried under it. Upon the face of it, Brown & Tukey are the shippers, and the contract or carriage is between them and the libellants as carriers. The defendants are connected with it only as assignees, and as such they certainly cannot be considered as the original contractors; and in this view it is immaterial whether the assignment was written a few moments before, or a few moments after, the master signed it.
Evidence aliunde was offered to show that the defendants were the owners of the property. Of course this evidence must be offered to show, that Brown & Tukey. while appearing on the bill of lading as the shippers, were not in fact so, but were really to be considered as the agents of the defendants in making the shipment. The evidence failed to show this; and the fact undoubtedly was, that Brown & Tukey bought and shipped this cargo on speculation, and, not having the means to pay for the whole of it, assigned the bill of lading as security for a part of the purchase money. This decision is supported by the case of Blanchard v. Page, 8 Gray, 281, where the late Chief Justice Shaw has examined the whole subject of the liability of shipper and carrier with great care and thoroughness.
The claim for storage cannot be allowed, as the libellants have not placed themselves in a position to be allowed to offer parol evidence of the contract, and so there is no legal evidence upon this point before the court.
