Gardiner v. Chace

¶1 We do not think this testimony is competent. The paper, which is produced, is an agreement between the parties to carry certain lumber from Providence to California, at the rate of $48 per thousand, for clapboards and $70 per thousand feet for joist. This is the written contract. The evidence proposes to set up a verbal contract, according to which the plaintiff was to have these rates of freight if the proceeds of the sale should amount to so much, but if not, the amount produced by the sale. The bill of lading is absolute in its terms, the verbal contract is conditional. Undoubtedly a bill of lading may be contradicted in certain particulars. It is a contract of a complex character. It is partly a receipt acknowledging the shipment of the articles, and as such, open to the rule of law applicable to receipts. It is partly a contract specifying the terms upon which the articles are to be carried, and as such cannot be contradicted by parol evidence. There is, also, a large class of cases, in which it has been held that where there is a written contract to do a certain thing, parol evidence may be admitted to show that a different time or place of performance was agreed upon. But here it is not proposed to change the time or place, but to change the obligation itself, making a contract, which is absolute in its terms, conditional, and if the evidence does not contradict the contract, it at least varies it, which is equally fatal.