199 mentioned, the contents of which were concealed from view. It could not apply to corn in bulk loaded into a car from an elevator. Appellee did not intend to say by its bill of lading that it had received 38,600 pounds of corn, the contents of which were unknown, and it would not be so understood.

So far as the provision that weight was subject to correction is concerned, a reasonable interpretation must be given to it, such as both parties would naturally give when the shipment was made. Errors and mistakes are liable to occur in weighing grain as in other things, and the right to correct such errors was reserved in the contract. Appellants had notice of that provision, and anything attributable to such ordinary errors and differences in weighing as might be reasonably expected to occur, might be corrected, but the right must be kept within the reasonable limits of such errors. Appellants, when advancing money on appellee's statement that it had 38,600 pounds of corn, to which they would get title by acquiring the bill of lading, would certainly not anticipate, under the provision for correcting errors in weighing, such an unreasonable difference in weight, not attributable to ordinary errors of that sort, as would amount to 256 bushels in a car load of corn. Such a difference would be apparent to sight, and it would require no test of weighing to show that it existed. Appellee would have no right, under cover of correction of errors in weighing, to account for such a difference as could arise only from gross negligence of its agent. Such obvious difference could not be charged to errors not plainly apparent, and merely due to mistakes in weighing, which would be discovered on again weighing the corn. If appellee could reduce the amount of corn more than one third, there would be no limit to the correcting that might be done.15 In our opinion, the holding of the court that appellee could not be made liable for more than the amount of corn delivered, was erro* * * The judgment will be reversed and the cause re

neous.

manded.

to him in a manner that puts upon him the exclusive duty of seeing to their safety."

In Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998 (1881), Miller, J., said: "The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to

deliver."

15 Compare Miller v. Hannibal, etc., R. Co., 90 N. Y. 430, 43 Am. Rep. 179 (1882), barrels containing only sawdust shipped as "30 bbls. of eggs, contents unknown"; The Querini Stamphalia (C. C.) 19 Fed. 123 (1883), weight unknown; Alabama Gt. So. R. Co. v. Comm. Mfg. Co., 146 Ala. 388, 42 South. 406 (1906), "50 bales, weighing 25,000 lbs., contents unknown," where the bales numbered 50, but weighed only 14,000 pounds.

MADDOCK v. AMERICAN SUGAR REFINING CO.

(District Court, D. Massachusetts, 1898. 91 Fed. 166.)

LOWELL, District Judge. The libelant, who is the owner of the steamship Salamanca, seeks to recover the balance of freight due for the carriage of sugar on the steamship from Cuba to Boston. The respondent was the purchaser of the sugar, and seeks to offset against the unpaid balance the value of 37 bags of sugar. The bills of lading, signed by the master of the Salamanca and assigned to the respondent, acknowledge the receipt on board the Salamanca of 11,640 bags, and the respondent paid value for this number of bags to the shipper; whereas the respondent contends that only 11,603 bags were delivered to it in Boston. It is admitted, however, that all the bags received on board, whatever the number, were duly delivered. As the case is presented, I have to determine if the vessel is liable for the shortage in the number of bags of sugar set out in the bill of lading, when the bill of lading and the sugar represented by it have passed to a bona fide purchaser. No fraud is charged against any one-master, owner, shipper, or vendee.

The great weight of authority, both in England and in this country, seems to hold that the vessel is not liable in the case above stated. See The Freeman, 18 How. 182, 15 L. Ed. 341; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998; Railway Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990, 38 L. Ed. 944; Jessel v. Bath, L. R. 2 Exch. 267; Sears v. Wingate, 3 Allen (Mass.) 103; The Loon, 7 Blatchf. 244, Fed. Cas. No. 8,499; Robinson v. Railroad Co. (C. C.) 9 Fed. 129; 1 Pars. Shipp. & Adm. 187; McLachlan, Shipp. 394; Legg. Bills Lad. 62. Several cases in New York to the contrary effect are admittedly opposed to cases which the Supreme Court has cited with entire approval. It is contended, indeed, that though the vessel be not liable for a shortage in weight, upon the ground that it is difficult, if not impossible, to weigh a cargo exactly, yet that the vessel is liable for a shortage in the number of cases or packages or other separate articles, inasmuch as these may be definitely counted. Without discussing if the exact number of more than 10,000 bags of sugar can be ascertained more accurately than the weight of a cargo of coal, I find nothing in the authorities to support the distinction urged.

The decisions above quoted, and many others, are made to rest upon the principle that the master's apparent authority to bind the vessel and its owner does not extend to signing bills of lading for cargo not actually received on board, or, at any rate, delivered into his hands for shipment. I must confess that this reasoning seems to me not altogether satisfactory. I suppose that the statement of the bill of lading signed by the master is evidence of the receipt of the goods mentioned in it, even against the owner and the vessel. See McLean v. Fleming, L. R. 2 H. L. Sc. 128, 130; Legg. Bills Lad. 225;

201 Pars. Shipp. & Adm. 197. It is hard to see how this can be so, if the master's authority extends only to goods actually received. If his authority be so limited, his receipt of the goods must first be proved, in order to show that he is authorized to certify that they have been received. Perhaps a better reason for the established doctrine may be that a bill of lading is not generally understood to be a representation to whomsoever it may concern that certain articles are in the hands of the carrier, but merely a receipt, which is, indeed, prima facie evidence of the facts set out in it, but is also subject to contradiction as against even a bona fide holder thereof. Whatever be the grounds of the doctrine, however, I think it is established too firmly for this court to question it.

Decree in accordance with this opinion.10

66

*

*

16 Affirmed 93 Fed. 980, 36 C. C. A. 42 (1899) Acc. Brown v. Powell Coal Co., L. R. 10 C. P. 562 (1875). It is a mistake to suppose that the interests of commerce require that the common carriers of the country shall become the insurers or guarantors of merchants who choose to make, in their dealings with others, a convenience of their bills of lading." Hammond, J., in Robinson v. Memphis, etc., R. Co., 9 Fed. 129, 140 (1881).

"To hold the ship to such a liability, would be not only in plain contradiction of the authorities above cited, but a plain enlargement and perversion of the ship's business from that of simple transportation, to that of guarantor and insurer against fraud or mistake in the execution of contracts between vendor and vendee for their convenience. That is not the proper business of the ship, or of her officers. The vendor and vendee could not make the ship or her owners responsible for the exact performance of the contract between themselves by means of the ship's tally taken for the purpose merely of giving the receipt in the bills of lading. The shipper plainly could base no conclusive claim upon such a tally; nor can the consignee, because neither the tally nor the bills of lading were given for the purpose of authorizing payment by the consignee before delivery or without any verification of the ship's count; nor was the consignee authorized to make use of the tally for such a purpose, except at his own risk, as regards fraud or mistake. There has long been, no doubt, a recognized tendency in favor of commercial dealings in goods in transit, to which dealings the ship is no party, to make the ship responsible, by the application of the principle of equitable estoppel, for the accuracy of the receipt stated in the bill of lading. This has never been by any acquiescence or agreement on the part of the carrier. In self-defense and to protect themselves against liabilities which they never intended to assume and for which they have received no corresponding remuneration, masters and ship owners have long been in the habit of inserting various restrictions and exceptions in order to guard against such responsibility." Brown, J., in the Asphodel (D. C.) 53 Fed. 835 (1893).

Where a bill of lading recites that freight has been paid, the carrier is estopped to contradict the recital as against one who has bought in reliance upon it. Howard v. Tucker, 1 B. & Ad. 712 (1831).

CHAPTER VI

TICKETS

AUERBACH v. NEW YORK CENT. & H. R. R. CO.

(Court of Appeals of New York, 1882. 89 N. Y. 281, 42 Am. Rep. 290.)

EARL, J. This action was brought by the plaintiff to recover damages for being ejected from one of the defendant's cars while he was riding therein as a passenger He was nonsuited at the trial, and the judgment entered upon the nonsuit was affirmed at the General Term. The material facts of the case are as follows:

The plaintiff, being in St. Louis on the 21st day of September, 1877, purchased of the Ohio and Mississippi Railway Company a ticket for a passage from St. Louis over the several railroads mentioned in coupons annexed to the ticket to the city of New York. It was specified on the ticket that it was "good for one continuous passage to point named on coupon attached"; that in selling the ticket for passage over other roads the company making the sale acted only ast agent for such other roads, and assumed no responsibility beyond its own line; that the holder of the ticket agreed with the respective companies over whose roads he was to be carried to use the same on or before the 26th day of September then instant, and that, if he failed to comply with such agreement, either of the companies might refuse to accept the ticket, or any coupons thereof, and demand the full regular fare which he agreed to pay. He left St. Louis on the day he bought the ticket, and rode to Cincinnati, and there stopped a day. He then rode to Cleveland and stayed there a few hours, and then rode on to Buffalo, reaching there on the 24th, and stopped there a day.

Before reaching Buffalo he had used all the coupons except the one entitling him to a passage over the defendant's road from Buffalo to New York. The material part of the language upon that coupon is as follows: "Issued by Ohio and Mississippi Railway on account of New York Central and Hudson River Railroad one first-class passage, Buffalo to New York."

Being desirous of stopping at Rochester, the plaintiff purchased a ticket over the defendant's road from Buffalo to Rochester, and upon that ticket rode to Rochester on the 25th, reaching there in the afternoon. He remained there about a day, and in the afternoon of the 26th of September he entered one of the cars upon the defendant's road to complete his passage to the city of New York. He presented his ticket, with the one coupon attached, to the conductor, and it was accepted by him, and was recognized as a proper ticket and punched

several times, until the plaintiff reached Hudson about 3 or 4 o'clock a. m., September 27th, when the conductor in charge of the train declined to recognize the ticket on the ground that the time had run out, and demanded $3 fare to the city of New York, which the plaintiff declined to pay. The conductor with some force then ejected him. from the car.

The trial judge nonsuited the plaintiff on the ground that the ticket entitled him to a continuous passage from Buffalo to New York, and not from any intermediate point to New York. The General Term affirmed the nonsuit upon the ground that, although the plaintiff commenced his passage upon the 26th of September, he could not continue it after that date on that ticket.

We are of opinion that the plaintiff was improperly nonsuited. The contract at St. Louis, evidenced by the ticket and coupons there sold, was not a contract by any one company or by all the companies named in the coupons jointly for a continuous passage from St. Louis to New York. A separate contract was made for a continuous passage over each of the roads mentioned in the several coupons. Each company through the agent selling the ticket made a contract for a passage over its road, and each company assumed responsibility for the passenger only over its road. No company was liable for any accident or default upon any road but its own. This was so by the very terms of the agreement printed upon the ticket. Hence the defendant is not in a position to claim that the plaintiff was bound to a continuous passage from St. Louis to New York, and it cannot complain of the stoppages at Cincinnati and Cleveland. Hutchinson on Carriers, § 579; Brooke v. Grand Trunk Railway Co., 15 Mich. 332.

But the plaintiff was bound to a continuous passage over the defendant's road; that is, the plaintiff could not enter one train of the defendant's cars and then leave it, and subsequently take another train, and complete his journey. He was not, however, bound to commence his passage at Buffalo. He could commence it at Rochester or Albany, or any other point between Buffalo and New York, and then make it continuous. The language of the contract and the purpose which may be supposed to have influenced the making of it do not require a construction which would make it imperative upon a passenger to enter a train at Buffalo. No possible harm or inconvenience could come to the defendant if the passenger should forego his right to ride from Buffalo and ride only from Rochester or Albany. The purpose was only to secure a continuous passage after the passenger had once entered upon a train. On the 26th of September the plaintiff having the right to enter a train at Buffalo, it cannot be perceived why he could not, with the same ticket, rightfully enter a train upon the same line at any point nearer to the place of destination.1

1 Compare Gt. No. Ry. Co. v. Winder, [1892] 2 Q. B. 595, where a passenger using a ticket for a distant station to a nearer point to which the fare was higher was held liable for the difference in fares.