Rhodes v. Newhall — 38 N.Y. St. Rep. 431

Majority

p. 431

Robert R. Rhodes et al., App’lts, v. Daniel E. Newhall, Resp’t.^[1]

(Court of Appeals,

Filed June 2, 1891.)

Headnote

‘Carriers—Bill or lading.

Plaintiffs, common carriers, gave the consignee bills of lading acknowledging the receipt on board of their vessel at Duluth of 54,000 bushels of

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wheat to he delivered to defendant at Buffalo, at 3| cents freight per bushel, ‘ ‘ all the deficiency in cargo to be paid by the carrier, and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee.” Plaintiffs only delivered 53,173 bushels, being a shortage of 837 bushels, worth §713.41. Held, that defendant was entitled to have the value of the deficiency deducted from the stipulated freight on the 54,000 bushels.

Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered in Erie county on report of referee.

Benjamin H. Williams, for app’lts; George J. Sicard, for resp’t.

This action was brought by a carrier to recover from the consignee the freight on a cargo of wheat transported from Duluth to Buffalo and deliverable to the defendant on payment of the freight and charges.

It is not disputed but that the plaintiffs executed and delivered to the consignee bills of lading, acknowledging the receipt on board their vessel of 54,000 bushels of wheat at Duluth, to be. transported to Buffalo and there delivered to the defendant, subject to.a charge of three and three-fourths of a cent per bushel for freight; and containing the further provision that “all the deficiency in cargo to be paid by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee.”

It is conceded by the answer that the carrier delivered at Buffalo to the consignee but 53,173 bushels of wheat, being 827 bushels less than the quantity specified in the bill of lading and $712.41 less in value; and the question in controversy is, whether the consignee was entitled to deduct this sum from the gross-amount of freight earned by the vessel.

The plaintiff gave evidence tending to show that they delivered all of the wheat at Buffalo which they received on board at Duluth. The trial court deducted the value of the deficiency from the stipulated freight on the 54,000 bushels and rendered-judgment for the balance; and the general term has affirmed its judgment

We think that the. cause was correctly disposed of. in the courts below. The plaintiffs seek to avoid the effect of the stipulation in the contract, fixing the quantity of wheat received by them at Duluth, by reference to the cases holding that an acknowledgment in a bill of lading specifying the quantity of merchandise received by them operates as a receipt only and is subject to correction by proof that such merchandise was not, in fact,, received. Citing Ellis v. Willard, 9 N. Y., 529 ; Abbe v. Eaton, 51 id., 410; Meyer v. Peck, 28 id., 590, and other similar cases.

The rule acted upon in those cases, as cited in the head note of Meyer v. Peck, is that “ an ordinary bill of lading is not conclusive, as between the original parties, either as to- the shipment of goods, or the quantity; as to those matters it operates merely as a' receipt and is open to explanation on the trial by parol evidence.” We feel no disposition to question the authority of these cases, or ¿o disregard the principle there laid down, but think that this case.

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is clearly distinguishable, in its facts, from those considered in the cases referred to. Here the parties have provided by express language for the particular contingency arising under the contract, and we can evade its operation only by disregarding one of the most imperative rules in the interpretation of contracts. A primary rule of construction requires a contract to be so construed as to give some meaning and effect to all of the language, and if the words used can have an operation which leads to no absurd results, and is not contrary to some provision of law, that meaning must be adopted rather than one which would render the language meaningless and inoperative. The provisions fixing the quantity of grain received and providing a mode by which any deficiency or excess in quantity shall be dealt with do not seem susceptible of any other effect than to prescribe a rule by which the consignee can determine the amount of freight and. charges payable by him to the carrier. Tor this purpose the provision has a legitimate and natural office to perform, which also accords with the plain signification of the language used.

It seems reasonable -that parties should agree upon the quantity of grain shipped for transportation to distant markets with a. view of avoiding controversies between the carrier and consignee upon the subject The cargo was here weighed into the vessel under the supervision and control of the carriers, and they had every opportunity to learn the quantity of grain actually received by them. They thereupon entered into a contract with the consignor whereby it was agreed that any deficiency in the cargo should be paid for by them, and deducted from the freight, and. any excess in quantity should be paid to them by the consignee.

The deficiency and excess referred to could have related to a variation from the quantity specified in the bills of ing, as there was no other standard furnished by which a variation could be estimated. This was a contract which the parties were competent to make and a consideration for the promise pay for any deficiency was secured by the right to collect value of any excess. These were mutual obligations and obviously incurred for the purpose of avoiding disputes over quantity actually received by the carrier, and to estop him from disputing the correctness of his acknowledgment The parties plainly contemplated the contingency of a variance in the course of transportation between the quantity of grain admitted to have been received by them and that subsequently delivered; and provided'in express terms the mode by which their respective rights should be adjusted in that event The language of the contract is plain and unambiguous, and the right of the parties to make is indisputable. Judge Denio said in Meyer v. Peck, supra: “ doubt it might be made a matter of express contract that the rier should account for the precise quantity acknowledged in instrument and that no other evidence on that point should be ceived.” See Lishman v. Christie, L. R., 19 Q.

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ized to pay only such freight as is provided for by the bill of lading. He can hold the property only for such advances as the bill of lading directs him to make, and there is no principle upon which he can be made liable for any greater amount than that called for by the letter of his authority to pay.

We have not considered the cases treating of the doctrine of estoppel as it is unnecessary, in the view we take of the case, to invoke that principle.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.