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77 Mass. 428

Kelley v. Bowker

Massachusetts Supreme Judicial Court

Decided October 15, 1858

Massachusetts Supreme Judicial Court · decided 1858-10-15

Action of contract by the master of the schooner Pavilion against the consignees to recover freight on a cargo of corn carried from New York to Danvers under this bill of lading : “ Shipped in good order and well conditioned by Lane & Man gum on board the schooner called the Pavilion, whereof is master , now lying in the port of New York, and bound for Danvers, Mass.: To say, twenty two hundred and eighty two bushels corn, more or less, all to be delivered, being marked and…

Relies on Tristram Clark v. Nathaniel Barnwell · Barrett v. Rogers

Decided 1858-10-15

Thomas, J.

¶1The question in this case is of the meaning and effect of the bill of lading. “ Shipped in good order,” &c., “ To say, twenty two hundred and eighty two bushels of corn, more or less,” dec. The master actually delivered only twenty two hundred and seventeen bushels. The defendants say that as between them and the master the quantity to be delivered is conclusively settled by the bill of lading; that the master is to account to them for the number of bushels stated, with a reasonable allowance for loss by handling and shrinkage. If you take from the bill of lading the words “ more or less,” the position is by no means certain. Barrett v. Rogers, 7 Mass. 297. Clark v. Barnwell, 12 How. 272. The insertion of these words excludes, we think, such conclusion. They show that the master did not mean to be bound by the number given; that it was an estimate rather than an exact measurement. Shepherd v. Naylor, 5 Gray, 591. Vose v. Morton, 5 Gray, 594.

¶2Exceptions overruled.

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