Wayland's Adm'r v. Mosely

5 Ala. 430 | Ala. | 1843

COLLIER, C. J.

In Jones, et al. v. Sims & Scott, [6 Pox'* ter’s Rep. 138,] it was held, that if a contract.be made by bill of lading in the ordinary fonn, by which one man acknowledges to have received of another, some article of merchandize to be deli-vei-ed to a third, who is to pay the freight, the title, by the shipment, eo instanti, passes to the consignee. Some of the cases maintain, that the bill is conclusive of the right of property; but ■in the case cited, this Court considei-ed it only prima facie evi-dence that the consignee was the owner, and might be rebutted by showing the reverse to be true. Whether the same piosumption is indulged, wheio the bill of lading states the consignees are •to pay half the-freight, the view which we take of the present case, makes it unnecessary to inquire.

If the bill of lading could be regarded as a mere receipt, it would be inconclusive, and might be varied by parol evidence; but its character is two-fold, viz: a receipt, and a contract, to carry and deliver. So far as it acknowledges the receipt of goods* and states their condition, &c., it may be contradicted; but in other respects it is treated like other written contracts, [Babcock v. May, et al., 4 Ohio Rep. 334; Barett, et al. v. Rogers, 7 Mass. Rep. 297; Greenl. on Ev. 353-4; 3 Phil. Ev. C. & H’s notes, 1439.] The bill of lading contains no express stipulation on the part of the shipper to pay freight, and his liability, at most, is a legal deduction, from the fact of the shipment, and the failure to provide some other means of payment. Let it be conceded then, as it is the point of view most favorable to the plaintiff, that the defendant is under an implied agreement to pay the freight, and we think it may be shewn that the evidence was properly admitted. The facts, so far as material, are these; Patteson, the agent of the defendant agreed AVith the plaintiff’s intestate to carry from Whitesburg, on the Tennessee river, the cotton in question; the intestate was at that time indebted to Patteson for a tract of land previously sold, and for which he was to pay him by carrying cotton to New-Orleans; and he agreed to look to Pat-teson for the freight, and never considered the defendant bound for it. After the bill of lading was signed, Pattesop purchased the cotton of Mosely, bound himself to pay the freight, and still considers himself bound to pay it. The fair inference from this evidence is, that Patteson gave the plaintiff’s intestate a credit equal to the amount of the freight against intestate’s indebtedness to .him, and that the freight, in virtue of the parol agreement, made simultaneously with the shipment of the cotton, was, in point of' law, fully paid. This being the case, there is no objection to the .admission of the evidence, as there might be if the contract to pay freight was executory, and had never been executed. In McNair and wife v. Cooper, at the last term, it was conceded, that in an action on a written contract, the defendant might avail himself in his defence of a parol stipulation which no longer remained in fieri, but had been performed. This case is well supported by authority, cited both in the argument of.counsel, and in the opinion of the court — it is not opposed to any principle, and is so decisive of the case before us as to render it unnecessary to amplify. The judgment of the circuit courtis affirmed.

CLAY, J. not sitting.