Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-01-10
RIGHTS OF COMMON CARRIERS
Important 10 Common Carriers and
shippers OF Produce and MerehaI..


decided in the Superior Court at Cincinnati
on the 4th inst This action was brought
to recover the value of cotton which was
shipped TO New York, and, after arrival at
is destination, was burned while in the
warehouse of the defendants.
THE cHARGE-THR VERDICT.
Judge Storereharged the jury az follows !:
The defendants are common carriers,
and by law are bound, unless exception is
specially made in their contract, to deliver
all freights received by them to the con-
| slgnees, or whoever may be the owner. at
the place Of its destination, unless they are
prevented from performing that duty bv
the act Of God or the enemies of the coun-
try. For all losses occurring from other
causes, whether fire, robbery or accident.
the carrier is liable. The carrier may,
however, limit his liability by speciai
agreement, and when this has been done.
and the freight is transported under it, if
q loss should afterward occur in the tran
slt, which is covered by the exception. the
carrier is discharged, provided the injury
was not the consequence Of neglect and the
want of the highest degree of care on his
part.
The contract Of affreightment is usual.
| ly, if not always, embodied in bill of
lading, which states the terms upon which
the property is to be transported. the de.
saription of the property, the place of
shipment as well as that Of destination. the
name of the consignee, and all the excep-
tions to the common law liability of the
carrier which may have been agreed on bv
the parties.
In the case before you the plaintiff
| claims TO recover upon verbal agreement
I to transport thirty>nine bales of cotton
from Nashville to New York, by all rail.
at the price of Sl7 per bale. to be deliy-
cred within twelve days to MurreIl &
| Bowles, his consignees. The defendants.
| on the other hand, deny that this was the
contract, and insist that they received the
cotton TO be transported to New York.
and gave to the shipper a bill of Iading
stating the terms of their agreement. To
prove the undertaking as claimed by the
plaintiff to have been made by the defend
ants, witnesses have been examined whose
| statements, in writing as well az on the
stand, are before you; and it will be vour
! duty carefully to examine all the testi,
moay touching this verbal agreement cons
sidering the manner as we'll as The time
! and place where it is said TO have heen
made. In this examination Won are the
sole judges of the credibility of the wit.
nesses and the reasonableness. of the facts
'ley assume TO prove; and if such an
agreement to transport the cotton was gem
eraiiy and usually evidenced by a bill of
iadlng, 1t will be proper for you further to
inquire, why 1t was that no bill of lading,
as Is alleged, was given by the defendants
or demanded by the plaintiff. Indeed,
every TACT connected with the mode in
which shipments are proved to have been
made in Nashville, and the course of busi-
ness there, you may take into considera-
ton TO AID your judgements in giving a
construction to the transaction.
1t is not necessary that The carrier,s
liability should be created by a bin of
lading the receipt of the property by him
is sufficient evidence, provided il is clearly
understood to what place it is to be con.
Veyed, and what are the terms of the con-
tract. But as We have already said. the
fact OF such a verbal contract being relied
on may lead you 10 ask why property of
such value, as were these bales of cation
was intrusted 10 the defendants 10 he
transported from Tennessee to New York
on so many independent RAILWAYS without
the usual and customary bill OF lading 70
bind the carrier. If you should be satisfied
however, that such was the contract of the
defendants az claimed by the plaintiff the
defendants must be held responsible, until
the delivery of the property in New York.
This delivery may be actual or construct
I'VE; IN the latter case, the duty is fulfilled,
II The proper party to receive the freight ia
notified of its arrival, and does not call for
us delivery within reasonable time then
the liability of the carrier ceases and that
Oh the WarehotIseman commences, where
the duty OF the bailee is that which attaches
10 mat peculiar relation, and demands only
ordinary care IN the preservation Of the
property. Hence the destruction of the
cotton by fire, at the pier in New York.
until such delivery was made, is no excuse
Tor the carrier, if there was no other con-
tract IN existence than the verbal one.
The defendants allege that on the same
day the property was delivered to them at
Nashville, the agent who managed their
business prepared bills of lading in the
only form used by them, and with which |
the plaintiffs agent was well acquainted. |
and handed them TO Reid, the plaintiffs
agent, who alone made the contract for the
shipment; that these bills were on the same
day sent by that agent to New York. and |
were received there by the consignees: that |
the eonsignees received the bales of cotton |
that we're not burned, under these bills of |
lading, and accounted TO the plaintiff for the |
proceeds; that they did not know, without |
these bills, to whom the cotton was to be |
oil - Al
signees in New York to receive il comm,
nicated TO the defendants, the carriers. If |
these facts have been proved to your satiss /
faction, you may well infer the assent of |
the plaintiff TO the bills Of lading as CON
tanning the terms Of the real contract be-
tween the parties. As a general rule, app
plying TO all agreements, all preliminary |
conversations, understandings, and stipula-
tions between parties are merged in the /
written contract, whenever such an instru-
ment is executed and adopted; both parties |
must be governed by the terms which are /
embodied in the written agreement. and |
neither can explain it by parol, unless there
is some latent ambiguity which requires |
explanation. 1t is the duty of the ship. |
ping merchant, when he receives from the /
carrier bill of lading, to examine il. and |
if its stipulations are such as he is not will /
ing to adopt, to advise the carrier at once.
and forbid the transpos tation of his pro. |
perry; if he neglects or omits to do 30. |
bnt retains the written contract, and, more. /
over, transmits il to his consignees.
thereby vesting, for the purpose of sale,
the right of property in the merchandise |
shipped, we may well apply to him
the principle of law which estops party |
from denying a fact he has induced the |
carrier to believe existed, especially if the
carrier, in good faith, has acted or relied |
upon it. So you will perceive the whole
question as to the assent Of the plaintiff to |
the bills of lading issued by the defend.
ants, counterpsrts of which are in evidence.
produced by the plaintiff, depends upon
the facts which occurred at the time Of +
shipment the eorrespondenceo OF the plaintiff
with his ocnsignees, and his subsequent
admission in the receipt of the proceeds
from the property saved taking into view
also, the usual mode in which such trans
actions were conducted, where property, TO
so large an amount, passed from the owner
into the hands of the carrier. If you are
satisfied these bills of lading were received