On appeal from the Supreme Court, whose opinion is printed in 14 N.J. Mis. R. 542.
For the appellant, Thompson & Hanstein.
For the respondent, Emory J. Kiess (William Charlton, of counsel).
The opinion of the court was delivered by
PARKER, J. The suit is by carrier against shipper for freight charges which plaintiff claimed should be paid by the shipper, and which by the terms of the bill of lading are so payable. The trial court allowed, and the Supreme Court approved, the admission of parol evidence to show that the paper-writing which was in duplicate, one part being retained by the carrier and the other part being taken away by the defendant, was not the contract agreed upon by and between the authorized agent of the plaintiff, one Keeper, and the authorized agent of the defendant named McKenna. Apart from the paper, the claim of the defendant shipper as to the facts was in substance that it desired the particular shipment to be forwarded with shipping charges to be collected from the consignee, and that this had been agreed upon between McKenna and Keeper; but that on the arrival of the goods the charges were not so collected as they should have been. There was some testimony for the carrier of an alleged telephone conversation with the Philadelphia office of the plaintiff, which need not be specially considered at this time.
As to the documentary evidence in the case, there were, as we have said, two duplicate originals of the written contract of carriage, namely, the bill of lading, and the evidence showed that the two were originally alike, because they were on printed forms and the written parts were filled in both at once, by means of an intervening sheet of carbon paper. The upper duplicate was delivered to the shipper, who failed to produce it at the trial on proper notice, and the other duplicate was produced by the carrier, and admitted in evidence. Certain additions in ink were made thereon by Keeper after the shipper had gone away with his duplicate; but this was explained at the trial, and the paper is to be considered without reference to them. However, testimony was received for
the defendant over objection and exception that the carrier's duplicate, admitted in evidence without objection and marked as an exhibit, did not express the oral arrangement of the parties, because by its terms it called for liability of the consignor unless the consignor "should sign the following statement."
"The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges.
If charges are to be prepaid, write or stamp here, 'To be prepaid'
Received $to apply in prepayment of the charges on the property ...