O'Bryan v. Kinney

• Decision Date: 31 October 1881
• Parties: O'BRYAN v. KINNEY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 125

O'BRYAN

v.KINNEY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Cooper Circuit Court.--HON. GEO. W. MILLER, Judge.

REVERSED.

Draffen & Williams for appellant.

John Cosgrove for respondent.

HENRY, J.

Defendant was the owner of the steamboat Kate Kinney, navigating the Missouri and Mississippi rivers, and engaged as a common carrier of passengers and freight. The petition alleged that on the 20th of August, 1876, plaintiffs, partners in buying and selling cattle, made a contract with the defendant to receive on said boat, on the 29th of August, 1876, 102 head of cattle, 100 at Saline City, and two at Old Franklin, and transport them to the levee opposite St. Louis, by daylight of the morning of the 31st of August, 1876, at $1.75 per head, and that the agreement to deliver them at East St. Louis at that time was a special inducement for plaintiffs to ship them on said boat; that the cattle were received on said boat, 100 at Saline City and two at Old Franklin, and were not delivered at East St. Louis until ten o'clock September 1st, 1876, and that by reason of the delay plaintiffs sustained damages by shrinkage in the weight of the cattle, and a decline in the market, in the sum of $850. The answer denied the agreement stated in the petition; and alleged the contract to have been to deliver the cattle without delay, the dangers of fire, navigation, explosion, collision, bridges, etc., excepted, and averred that the cattle were received and carried under said contract and delivered without unnecessary delay, etc. Plaintiffs had judgment for $650, from which defendant has appealed.

It appears from the evidence that defendant was owner and William Young master of the boat, and there was evidence tending to prove the verbal agreement with the latter, as alleged by plaintiffs, to which defendant objected as incompetent, but his objection was overruled. 100 head of the cattle were received at Saline City, on the Missouri river, a few miles above Old Franklin, and two head at Old Franklin, opposite Booneville where O'Bryan resided. When the 100 head were received at Saline City, a bill of lading was delivered to one Ballard, who delivered the cattle, which was as follows: “Received from W. A. McNulty, in apparent good order and condition, on board the good steamboat Kate Kinney, the following articles marked as below, which are to be delivered, without delay, in like good order, (the dangers of navigation, fire, explosion, collision, bridges and all known and unknown obstructions excepted,) to Irons, Cassidy & Co., at East St. Louis, on levee or wharf-boat, he or they paying freight at the rate of $1.75 and charges.” On receipt of the two head at Old Franklin, a bill of lading for them, similar in all respects, except in the number of cattle, was delivered to O'Bryan.

1. COMMON CARRIER: bill of lading: evidence.

Such being the facts, was evidence of the oral agreement admissible? “As a general rule, when goods are delivered to a carrier for transportation, and a bill of lading or receipt is delivered to the shipper, he is bound to examine and ascertain its contents; and if he accepts without objection, he is bound by its terms, and resort cannot be had to prior parol negotiations to vary them.” Germania Fire Ins. Co. v. M. & C. R. R.Co., 72 N. Y. 93; s. c., 28 Am. Rep. 113. To the same effect are Long v. N. Y. Cent. R. R. Co., 50 N. Y. 76; Belger v. Dinsmore, 51 N. Y. 166; Steers v. Liverpool, etc., S. S. Co., 51 N. Y. 1; Maghee v. C. & A. R. R. Co., 45 N. Y. 514. But when a complete contract has been made and the goods delivered to the carrier, and afterward, while the goods are in transitu, a bill of lading is delivered varying in its terms from the verbal agreement, the shipper is not bound by the terms of the bill of lading, but may stand...