held that the evidence was not admissible to vary the legal import of the contract of shipment, and that the bill of lading being a clean bill, that is, being silent upon the subject, bound the owners of the vessel to carry the goods under deck.2

3

Sec 170. Same subject-Effect of subsequent parol agreement. But while the rule as we have seen is, that neither the express terms nor the implied rights and obligations of the contract embodied in the bill of lading can be contradicted or varied by oral evidence of prior parol negotiations, it does not follow that a parol agreement subsequently entered into and to which the parties have mutually assented will not be binding on them, although it operates to change or modify the terms of the bill of lading. In such a case, it is said, the rule that written contracts not falling within the statute of frauds may be changed or modified by a subsequent parol agreement which is founded upon a sufficient consideration will apply, and parol evidence will be admissible to prove its terms, although such evidence tends to change or modify the provisions of the written contract. Thus, while the carrier has the right in a case where there are two routes over which he may forward goods, and the bill of lading is silent as to the route to be employed, to select the usual and customary route, such right is not inalienable and may be modified by a subsequent parol agreement to forward the goods over a particular route.5

Sec. 171. Effect of delivery of bill of lading after oral contract of shipment made but before shipment has begun.-If the shipper and the carrier have entered into an oral contract for the shipment of goods, but before such contract is acted upon the shipper accepts from the carrier, with knowledge of its contents, a bill of lading which contains provisions at variance with the conditions of the oral contract, the ordinary rule that a bill of lading is the sole evidence of the final agreement of the parties

2. Sproat v. Donnell, 26 Maine, 203, 39 N. E. Rep. 523; Railroad Co. v. Levy, 127 Ind. 168, 26 N. E. Rep. 773.

187.

3. Steidl v. Railroad

Minn.

Co.,

102 N. W. Rep. 701; Railway Co. v. Craycraft, 12 Ind. App.

4. Steidl v. Railroad Co., supra. 5. Steidl v. Railroad Co., supra.

will apply, and the bill of lading will be held to control the shipment. It has been held, however, by the Court of Civil Appeals of Texas that a bill of lading thus delivered, although signed by the shipper, will not control the shipment when no affirmative evidence appears that, at the time he made the verbal contract, he knew he would be required to sign the written contract or that he knew the contents of such written contract.7

Sec. 172. Same subject-How when goods shipped under parol contract before bill of lading delivered.—But if the carrier has, in pursuance of an oral contract, already shipped the goods, the mere acceptance and retention by the shippers of a bill of lading the conditions of which are unlike those of the oral contract will not preclude him from showing what the actual agreement was under which the goods were shipped; and the oral contract alone will be looked to in determining the contract rights and duties of the parties. But the rule as thus stated must not

6. Railway Co. v. Batte (Tex. Civ. App.), 94 S. W. Rep. 345.

7. Gulf, etc., R'y Co. v. Funk, Tex. Civ. App. —, 92 S. W. Rep. 1032.

8. Bostwick v. The Railroad, 45 N. Y. 712; Wilde v. Transportation Co., 47 Iowa, 247; Stoner v. Railway Co., 109 Iowa, 551, 80 N. W. Rep. 569; Hendrick v. Railroad Co., 170 Mass. 44, 48 N. E. Rep. 835; Rudell v. Transit Co., 117 Mich. 568, 76 N. W. Rep. 380, 44 L. R. A. 415; Transportation Co. v. Furthmann, 149 Ill. 66, 36 N. E. Rep. 624, 41 Am. St. Rep. 265; Railway Co. v. Elgin, etc., Co., 175 Ill. 557, 51 N. E. Rep. 911, 67 Am. St. Rep. 238; Railway Co. v. Hull, 76 Ill. App. 408; Waldron v. Fargo, 170 N. Y. 130, 62 N. E. Rep. 1077, reversing 64 N. Y. Supp. 798; Burns v. Burns, 131 Fed. 238, 65 C. C. A. 224; Railway Co. v. Wood (Tex. Civ. App.), 30 S. W. Rep. 715; Railway Co. v. Botts, 22 Tex.

Civ. App. 609, 55 S. W. Rep. 514; Railway Co. v. Grant, 6 Tex. Civ. App. 674, 26 S. W. Rep. 286, citing Hutchinson on Carr.; Railway Co. v. Wright, 20 Tex. Civ. App. 137, 49 S. W. Rep. 147; McCullough v. Railway Co., 34 Mo. App. 23; Transportation Co. v. McKenzie (Can.), 25 S. C. R. 38; Olds v. Railroad Co., 94 N. Y. Supp. 924.

The leading case on this subject is Bostwick . The Railroad, 45 N. Y. 712. It was there held that where the goods had already been shipped under a verbal agreement, the delivery afterwards to the shipper of a bill of lading, his attention not being called to its terms or conditions, did not conclude him from showing what the actual agreement was under which the shipment had been made. The verbal contract was, as proven, to transport by rail; but in the bill of lading there were printed conditions which authorized the car

be understood as denying to the parties, after the goods have been accepted for transportation, the right to alter or modify the conditions of the oral contract by a bill of lading subsequently delivered. If, therefore, the shipper, when accepting the bill of lading, has his attention called to its terms, or if he otherwise has notice of its conditions and he either expressly or impliedly assents to them, there is no reason why the bill of lading should not control the shipment, although its terms are inconsistent with the oral contract. But to have this effect, the assent of the shipper to the terms expressed in the bill of lading must have been fairly procured, and if it should appear that an unfair advantage was taken of him, or any means or devices resorted to to keep him from fully understanding its terms, the carrier would not be permitted to avail himself of them.10 If, however, at the time the

riage by rail and water. The carrier at the terminus of his own line forwarded a portion of the goods by water, and the vessel having been wrecked and the goods lost he was held liable under the verbal agreement. And it was said in the same case to have been previously determined by the court that the conditions contained in a bill of lading not delivered until after the shipment and the loss of the goods, though before the loss was known, did not control the rights of the shipper.

This case was followed in Swift v. Steamship Co., 106 N. Y. 206. There oil had been shipped from Panama to New York under a special contract, partly in parol and partly in writing. Afterwards the carriers sent to the shippers bills of lading containing limitations not agreed upon. "The defendants," said the court, "could not abrogate or alter that contract by merely signing and mailing bills of lading which did not reach the plaintiffs until after the oil had

left Aspinwall, and much, if not all, the loss had occurred. There certainly was no conclusive evidence that the plaintiffs consented to accept the bills of lading in place of the prior contract, and that contract must, therefore, control." Bostwick v. The Railroad, supra; Guillaume v. Transportation Co., 100 N. Y. 491, and Wheeler v. Railroad Co., 115 U. S. 29 were cited.

Where a passenger ticket containing a limitation as to baggage was not delivered until long after fare had been paid and the baggage received, it was held to be a question for the jury whether there was a valid contract. Lunansky v. Packet Co., 99 N. Y. Supp. 810.

9. The Arctic Bird, 109 Fed. 167; The Railway Co. v. American, etc., Co., 195 U. S. 439, affirming Farmer's, etc., Co. v. Railroad Co., 120 Fed. 873, 57 C. C. A. 553, which case reverses 112 Fed. 829.

10. A written contract presented by the carrier's agent to the

bill of lading is issued, damages have accrued under the oral contract, the shipper will not, by accepting the bill of lading and assenting to its terms, waive his right to sue for the breach. But if the bill of lading should expressly provide that any breach of the oral agreement relating to the shipment should be waived, and the shipper assents to such condition, thereby evincing an intention to regard the writing as covering the entire shipment, his assent will amount to a disclaimer of the breach and a waiver of his right to claim damages therefor.11

Sec. 173. Same subject-Effect of custom-Temporary receipts. If a custom has become well established between the shipper and carrier for the latter to issue his receipts after the goods have been shipped, and a receipt is issued by the carrier in accordance with such custom for goods after they have been shipped, its terms will control the rights of the parties.12 So if the shipper has notice from a previous course of dealing that, in order to secure a reduced freight rate, he must agree to certain conditions in the carrier's bill of lading, and he delivers goods to the carrier to be transported at such reduced rate, a mere delay by the carrier in executing the bill of lading until the service has been partly performed will not operate to relieve the shipper from the effect of such conditions.13 And if at the time the goods are accepted by the carrier for transportation a temporary receipt is issued, and it is mutually contemplated by the parties

shipper after the goods have been delivered, which the shipper is in duced to sign by a misrepresentation, will not bind him to its terms. Railway Co. v. Anderson, 26 Tex. Civ. App. 518, 63 S. W. Rep. 1023. Where, in order to secure a right given him under an oral contract, the shipper is obliged to sign a new contract while the goods are in transit, and he does so under protest, he will not be concluded by the terms of the second contract. Railroad Co. v. Lannum, 71 Ill. App. 84.

that a bill of lading shall later be substituted for the receipt, the latter will be considered as representing the first and only contract between the parties.14 But the mere acceptance by the shipper of a receipt which provides that the goods are received subject to the terms of a bill of lading to be subsequently issued will not operate to bind him to such terms, and unless his assent to them has been fairly secured, the carrier cannot avail himself of them.15 The receipt in such a case is not considered as representing the contract of shipment, and any conditions inserted in it are therefore regarded as mere notices, not binding on the shipper unless he has assented to them. It was held, however, in the case of Dunbar v. The Railway Company,16 that where the receipt delivered to the shipper expressly stated that the goods were received subject to the terms and conditions of the company's bill of lading, for while it was provided the receipt should be exchanged, the shipper would be deemed to have had such notice as to put him on inquiry and would be bound by the terms and conditions of the bill of lading.

Sec. 174. Same subject-Acceptance of bill of lading after oral agreement made to furnish cars at certain time. If the shipper enters into an oral agreement with the carrier to furnish cars at a certain time, and before that time arrives a written contract is executed which provides that the goods are not to be transported within any specified time nor delivered at destina

14. Washburn Crosby Co. v. Railroad Co., 180 Mass. 252, 62 N. E. Rep. 590.

15. Merchant's, etc., Co. v. Furthmann, 149 Ill. 66, 36 N. E. Rep. 624, 41 Am. St. Rep. 265.

Where a mere receipt is delivered to the shipper which recites that the goods are received subject to the company's bill of lading, no bill of lading ever being is sued, the bill of lading does not thereby become a part of the shipping contract. Pittsburgh, etc., Ry. Co. v. Bryant, Ind. App.

75 N. E. Rep. 829. A provision in a shipping receipt that goods are to be shipped "as per conditions in company's bill of lading," will not render binding on the shipper conditions written into the bill of lading not assented to or authorized by him. Railway Co. v. Potts & Co., 33 Ind. App. 564, 71 N. E. Rep. 685. See also, Stewart v. The Railway, 21 Ind. App. 218, 52 N. E. Rep. 89.

16. 62 S. Car. 414, 40 S. E. Rep.

884.