81 U.S. 579 (1872), The Delaware

Citation:81 U.S. 579, 20 L.Ed. 779
Case Date:January 29, 1872
Court:United States Supreme Court

Page 579

81 U.S. 579 (1872)

20 L.Ed. 779


United States Supreme Court.

January 29, 1872


APPEAL from the Circuit Court for the District of California; the case being thus:

The Oregon Iron Company, on the 8th of May, 1868, shipped on board the bark Delaware, then at Portland, Oregon, 76 tons of pig-iron, to be carried to San Francisco, at a freight of $4.50 a ton. The bill of lading was in these words:

'Shipped, in good order and condition, by Oregon Iron Company, on board the good bark Delaware, Shillaber, master, now lying in the port of Portland, and bound to San Francisco, to say seventy-five tons pig iron, more or less (contents, quality, and weight unknown), being marked as in the margin, and are to be delivered in like good order and condition at the aforesaid port of San Francisco, at ship's tackles (the dangers of the seas, fire, and collision excepted) unto -----, or assigns, he or they paying freight for the said goods in United States gold coin (before delivery, if required), as per margin, with 5 per cent. primage and average accustomed.

'In witness whereof the master or agent of said vessel hath affirmed to three bills of lading, all of this tenor and date; one of which being accomplished, the others to stand void. Vessel not accountable for breakage, leakage, or rust.


'For the captain.

'PORTLAND, May 8th, 1868.'

The iron was not delivered at San Francisco; and on a libel filed by the Iron Company, the defence set up was that by a verbal agreement made between the Iron Company and the master of the ship before the shipment or the signing of the bill of lading, the iron was stowed on deck, and that the

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whole of it, with the exception of 6 tons and 90 lbs., had been jettisoned in a storm.

On the trial, the owners of the vessel offered proof of this parol agreement. The libellants objected, and the court excluded the evidence on the ground that parol proof was inadmissible to vary the bill of lading; and decreed in favor of the libellants for the iron that was thrown overboard. On appeal the case was disposed of in the same way in the Circuit Court. It was now here; the question being, as in the two courts below, whether in a suit upon a bill of lading like the one here, for non-delivery of goods stowed on deck, and jettisoned at sea, it is competent, in the absence of a custom to stow such goods on deck, to prove by parol a verbal agreement for such a stowage.

The District Court, in its opinion, among other things, said as follows:

'It is not disputed that the ordinary bill of lading imports that the goods are to be safely stowed under deck. It must also be admitted that, if they are stowed on deck with the consent of the shipper, or in accordance with a well-established and generally recognized usage, either of the particular trade or in respect of a particular kind of goods, the ship will not be liable. The point presented is, whether the consent of the shipper can be proved by parol.

'The case of Creery v. Holly, 1 is directly in point. In that case Mr. Justice Nelson says:

"It is true that in this case nothing is said in the bill of lading as to the manner of stowing the goods, whether on deck or under deck; but the case concedes that the legal import of the contract, as well as the understanding and usage of merchants, impose upon the master the duty of putting them under deck, unless otherwise stipulated; and if such is the judgment of the law upon the face of the instrument, parol evidence is as inadmissible to alter it as if the duty was stated in express terms. It was part of the contract. It seems to me it would be extremely dangerous, and subject to the full force of every objection that excludes the admission of this species of evidence, to permit any stipulation, express or implied, in these instruments, to be thus varied. . . . If the implied obligation of the master in this case,

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arising out of the conceded construction of the bill of lading, may be varied by parol evidence, I do not see how any other stipulation included in it could be sustained upon an offer to impeach it in the same way."

'In Niles v. Culver, 2 the same principle was applied to a memorandum, which imported a contract.

'In White v. Van Kirk, 3 parol proof offered by a shipper of goods to show that the master agreed to take a particular route was held to be inadmissible.

'In The Waldo, 4 the language of Mr. Justice Ware is nearly identical with that of Mr. Justice Nelson, above quoted:

"It is true that the bill of lading does not say in express terms that the goods shall be stowed under deck, but this is a condition tacitly annexed to the contract by operation of law; and it is equally binding on the master, and the shipper is equally entitled to its benefit, although it was stated in express terms. The parol evidence, then, is offered to control the legal operation of the bill of lading, and it is as inadmissible as though it were to contradict its words."

'In Garrison v. The Memphis Insurance Company, 5 it was held that, where the bill of lading mentioned that the carrier was not to be responsible for injuries caused by the 'perils of the river.' parol evidence was inadmissible to show that by usage 'fire' was included among those perils.

* * *

'Where a promissory note mentions no time of payment, the law adjudges it to be due immediately, and parol evidence is not admissible to show a different time of payment agreed upon by the parties at the time it was executed.' 6

These and other cases were relied on by the court, and in addition to themBarber v. Brace, in the Supreme Court of Connecticut, 7 was cited by counsel, to show that 'a parol agreement anterior to a written contract is inadmissible.'

The question, as the reader familiar with the decisions on the subject will see, is one upon which opinions not consistent with some of those thus above quoted have been

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given in certain courts. In this court the question had never been specifically passed upon. On that account and for the importance of the question, the argument against the view in the courts below, is presented with more than ordinary fulness.


Mr. E. Casserly, for the plaintiff in error:

I. The objection to the parol proof is put on a rule of evidence. What is the rule of evidence? Does it apply in this case?

1. The rule is exactly stated by our leading text writer, 8 who holds it with all due strictness:

'Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.'

Mr. Starkie 9 states the rule substantially the same way. And he adds, as 'a general rule,'

'Oral and extrinsic evidence is admissible to rebut a presumption of law or equity. Here it is not offered as a substitute for the written evidence, but to remove an impediment, which would otherwise have obstructed or altered its operation.'

The writer, 10 who, more than any other, has discussed thoroughly the whole subject, states the rule explicitly:

'The true meaning of the rule is, that such evidence shall never be received to show that the intention of the parties was directly opposite to that which their language expresses, or substantially different from any meaning the words they have used upon any construction will admit or convey.'

Barrett v. Insurance Company, 11 is almost in the same language as that last above quoted.

In Parks v. Gen. Int. Co., 12 it is held that a condition or

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implied undertaking, not expressed in the terms of the policy, may be superseded by a previous verbal or written statement.

In Susquehanna Company v. Evans, 13 Judge Washington states the rule to be:

'The reasons which forbid the admission of parol evidence to alter or explain written agreements do not apply to those contracts implied by operation of law.'

In Brent's Executors v. Bank, 14 parol proof was admitted of an agreement that payment of a promissory note should be demanded at a particular bank, and not personally of the maker; the note being silent on the subject. Marshall, C.J., say:

'This is not an attempt to vary a written instrument. The place of demand is not expressed on the face of the note, and the necessity of a demand on the person when the parties are silent is a mere inference of law, which is drawn only when they are silent. A parol agreement puts an end to this inference. . . . This does not alter the instrument, so far as it goes, but supplies extrinsic circumstances which the parties are at liberty to supply.'

2. Does the rule apply to this case? How did the proposed parol evidence 'contradict or vary the terms of the written instrument'--in this case, the bill of lading? By its 'terms' the bill makes no provision whatever for stowage of the iron shipped, still less for stowage of it in any particular place. Clearly, then, parol proof of an agreement for a deck stowage cannot be said to 'contradict or vary the terms' of the bill. Suppose we read the bill as though it contained the agreement which we offered to prove--'said iron to be carried on deck.' In what respect does this provision 'contradict or vary the terms of the written contract?' Since it does not, but is obviously in accord with them, how can parol proof of it be said to do so?

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3 As the bill, by its 'terms,' provides nothing as to the place of stowage, and as the law allows the parties to make what contracts they choose as to that particular subject, and in what manner they choose, by writing or by words, it is incorrect to say that parol proof of a contract, or consent by the shipper to stow on...

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