MEHRBACH V. LIVERPOOL &' GRlllA'r,'WESTERN STEAK CO.
also present such objections as wereavailahle iIi opposition present petition. The amendments ate, therefore, allowed only upon the terms of restoring the dividends on the two bills in question heretofore received, with interest thereon, and the payment of $50 counsel fees and charges of the trustee upon this application, and also upon payment of the costs and counsel fees of the trustee in the suit of Brown, Shipley & Co., commenced in July, IS81, up to this time, in case the trustee shall elect to abandon .the. further defence of that action; and, if he shall not so elect, then upon a stipulation of Brown, Shipley & Co. that in case of their success in said suit they shall have no costs therein up to this time, but shall pay the trustee's costs up to this date.
LIVERPOO:r.&' GREAT WESTERN STEAM
(Di8trict Oourt, E. D. NCIJJ Y01'k,April 10, 1882.)
SHIPPING-ORAL AGREEMENT-REOOVERY BAOK OF Fl;\fIGHT MONEY.
Libellant and respondent. entered intq an agreement for the shipment by libellant, on various vessels of the respondent, of 250 horses, to be transported from New York to Liverpool, and that libellant, in consideration of areduction in the rate of freight, should pay the freight at the time of shipment and assume all the risks of the voyage, including the risk of a failure to perform the voyage by reason of perils ohIie 'Su'bsetluently a shipment of 54 horses was made, which were lost at sea. Held, that the horses were taken on board in pursuance of the oral agreement;Jlotwithstanding a bill of lading was delivis noniable 'for the return of the ered to the shipper, and that the freight money paid for their'transportation. ' . '
Butler, Stillman « Hubbard,forlibellant. Beebe, Wilcox« Hobbs, for respondent. BENEDICT D. J. This is ali ·actioll,:brought in the name of Isaac Mehrbach, libellant, for the benefit of,thePhcenix Insurance Company, to recdver of the owners of the steam-ship Idaho the sum of $2,70Q, being money paid those ownerabythe libellant as the freight of 54 horses shipped on board the Idaho on May 21, 1881,'to ,be transported t'oLiverpool, but ne'ver delivered,owingtoa loss of the steamer with hereargo at sea, before the cot1lpletionof the''\Toyage. The evidence shows the shipment of the horses; the payment of the freight, 'a.mounting to $2,700,'by the libellant to the respondent ; the
. FEDERAL. REPORTER.
insurance of the freight by the libellanttand its payment to him by the Phcenix Insurance Company after the sinking of the steamer. The evidence further Bhows that in March. 1881, the libellant. Mehrbach, and the respondent entered into an agreement for the shipment by Mehrbach, on various vessels of the respondent, of 250 horses, to be transported from New York to Liverpool. One of the provisions of that agreement was that Mehrbach should, in consideration of a reduction in the rate of freight from $60 to $50 per h9rse. shipped or provided for,pay the freight at the time of the shipment of the horses, and assume all the risks of the voyage, including the risk of a failure to perform the voyage by reason of perils of the seas. In pursuance of that agreement several shipments were made, and among them the one of 54 horses here in question, being the third lot. For these 54 horses a bill of lading was issued by the respondent and delivered to the libellant. This bill of lading was a blank filled up in writing. In the written portion were the words "not accountable for damage' 'Or mortality." In the printed portion were the words "freight for said goods being paid immediately on landing, without any allowance of creditor discount." In the margin of the bill of lading was written the words" 54: horses, at $50 each, $2.700, £551 Os. 4p., paid here.t!. L:, , The evidence warrants the further finding that this bill of lading was issued after the horses had been received on board the steamer. The bill of lading asserts that the horses had been shipped, and by never given until the property well-known usage a bill of ladmg is on board. The evidence also warrants the finding that the bill of' lading was issued by mistake. Suchisth.e tes,timony of Mr. Underhill. and no one contradicts him. There is no evidence to Show when the $2,700 were paid. The payment may have been made. before the bill of lading was issued, and ·such, perhaps, is the proper inference, from the fact that the words "paid here," presumably written at the same time with the rest of .the, instrument, convey the .idea that the payment had already been made. If the fact be that the payment was made before the delivery of the bill of lading, the circumstances lead directly to the inference 'that the payment was in performance of the only agreement then subsisting, viz., the oral agreement according to which the freight was then' due, and the performancE! of the voyage at the risk, of the shipper;,: Under this view of ,the transaction the libel must, of course, fail.
IlEHRBACH V. LIVERPOOL Ir GRUT WBSTERN STEAM. CO.
But if the proper inference in regard to the time of the payment be: that it was contemporaneous with the delivery of the bill of lading,.' then the written contract presents an ambiguity, and may be explained by parol; for in one place the freight is made payable in Liverpool on delivery of the cargo; in another place it is made payable in New York on shipment of the goods. This inconsistency is explained by the surrounding circuIUstances; for, as it is important to notice, the bill of lading issued for these 54 horses was not the embodiment of any prior agreement, nor the result of prior neRotia-, tions. There was no prior agreement or negotiation for the shipment of 54 horses. The prior oral agreement was for 250 horses. It was a complete and valid contract, and it had already been partially performed when the bill of lading in question was issued. The 54 horses mentioned in the bill of lading were taken on board the steamer in pursuance of this prior oral agreeOlent, and became bound by the provisions thereof. If no bill of lading had been issued for these. 1$4 horses, and the $2,700 paid when it was paid.:, there would have been no room to contend for a liability to repay. ,,' 'To these circumstances must be added the fact that the issue of the bill of lading arose out of a mistake. From all these circumstances the meaning of the:biU of lading is plain. The word13 "paid here" (10 not refer to an advance of freight to be thereafter earned, inserted in order to make the written bill of ladiI;lg conform to the <;>ral agreement under which the horses had been shipped, and were intended to supersede the printed words of, the ,bill of lad,ing.'l'bey mean, that the freight was to be advanced, but paid as being then dU6. The word used is "paid" not "advanced." If such,be. the proper con. struction of the bill of lading, no liability to repay $2,700 was incurred, and the libel must be dismissed. Lastly, the words "paid bere" may have been written after the bill of lading had been delivered to the shipper, and intended to be a receipt for money then paid. If so, it is evident that some different understanding from that contained in the bill of lading was entered into subsequent to the bill of lading. .The act of paying the freight here was an act not provided for by the bill of lading', and must be the result of some agreement about this freight made between these parties after the bill of lading had been issued, which, because sub. sequent to the written contract, may be proved, although not in harmony with the written contract, and oral. See Atwell v. Miller, 11 Md. 348. Then arises the question, what was that subsequent agree. ment, in pursuance whereof the respondents, on their part, received
in New York $2,700, which, by the bill of lading, they were entitled to receive in Liverpool, and the libellant, on his part, paid in New York $2,700, when by the bill of lading he was to pay in Liverpool on performance of the voyage? Evidently a part of that agreement was that there should be 'no liability to repay the money then agreed to be received and to be paid. I say evidently, because a mistake had been committed in issuing the bill of lading; because, bj' the oral agreement, then partly 'executed, there was to be a payment of $:J,!100 for these Bame horses, and without liability to repay; and because the shipper, after he had paid the $2,700, insured himself at his own expense against losing the $2,700 by the, loss of the ship. " These circumstances are to my mind abundanUy sufficient to repel the implication of a promise on the.part of the tespondentsto repay the $2,700 in (lase of loss of the ship; and in the absence of a promise to repay thea6tibn must; of course, fail, for it is in its nareceived. ture an action for The case, therefora/lookell a.t in any aspeit, fails to make out a liability On' the part.ofihe defendants to repay to the libellants the $2,700 in question.' I do not see that :the fact that the action is for the benefit of the insurance company, from which the libellant has received his $2,700, helps the case. The insurance company take the place of the shipper, and the words \tpaid here," 'on the bill of lading, were sufficient to put them on inquiry as to 'the circumstances under which the payment was made. '. . My determination, therefore, is that the libel must be dismissed, and with costs.
TO LORD CLIVE.
«(}ircuit Oourt, E. D. Penns1/lfJania. April 29, 1882.)
PILOTAGE-STATUTES OF PENNSYLVANIA-DUTY TO ACCEPT THE FIRST PILOT FERING.
The decree of the district court that under the Pennsylvania atatute of March 29, lSG3, the master of a vessel of the draught mentioned in the.act is hound to accept the first duly-qualified pilot who offers his services, affirmed on appeal.
Appeal from the decree of the district court in favor of libellant, who had filed a libel for a penalty imposed by statute in cage of the refusal of an inward·bound ship to accept the first duly-qualified pilot offering his services. The district court held that the vessel was, under the Pennsylvania statute of March 29: 1803, bound to accept such pilot, and that this provision of the statute was not repealed by the subsequent statute. of March 24, 1851. A full report of the case and the opinion of the district court will be found in 10 FED. REP. 135. Respondents appealed from the decree. H. G. Ward and Morton P. Henry, for appellant. Albert E. Peterson and W. W. Wiltbank, for appellee. PER CURIAM. The decree of the district court is affirmed for the reasons given by the district judge, and it is therefore ordered that the same decree which was entered in the district court be entered in this court, with costs.
See The Lord Clive, 10 FED.
164; under the laws of Oregon, The Glaramara, 10 FED. REF. 678.
*Reported b7 Frank P. PrIchard, Esq., or the Philadelphia bar.