Merian v. Funck

4 Denio 110

• Court: New York Supreme Court
• Decided: January 15, 1847
• Status: Published

Opinion

By the Court, Jewett, J.

The obligation to pay freight rested on the bill of lading, by which its payment was made a condition of delivery to the consignee or to his order. The master was not bound to part with the goods until the freight was paid; but he did not, by delivering the goods before payment, waive or discharge his legal right to demand payment of the person who, by the principles of law, was primarily liable to pay. It is well settled that when the goods, by the terms of the bill of lading, are to be delivered to the consignee or to his order, on payment of freight, the party receiving them, whéther the consignee or an endorsee, to whom the bill of lading has been transferred by the consignee, makes himself responsible for the payment of the freight. The law implies a promise on his part to pay the freight, such being the terms on which, by the bill of lading, the goods were to be delivered. The person who accepts and receives the property thereby makes himself a party to the contract. In this case the goods were consigned to the defendants, or to their order. They endorsed the bills of lading and ordered a delivery to Mainon & Bonnay, to whom the goods were delivered. They, and not the defendants, were therefore bound to pay the freight. (Cock v. Taylor, 13 East, 399; Trask v. Duval, 4 Wash. C. C. R. 184.)

In Tobin v. Crawford, (5 Mees. & Wels. 235,) affirmed' on error in the exchequer chamber, (9 id. 716,) the bills of lading made the goods deliverable to the shipper’s order, or to his assigns, on paying freight; the shipper endorsed the bills of lading and forwarded them to the defendants, who endorsed them to their agents, and the agents received the goods. It was held that the-defendants were not liable for the freight, because the contract was with the shipper in the first instance, and after-wards with the agents' receiving the goods, but not with the defendants, they having given no authority, express or implied, to pledge their credit for the freight. The only authority which could be implied, was to receive the goods, paying the freight on delivery. The case establishes the principle that the party who actually receives the goods under the bill of lading becomes thereby a party to its stipulations respecting freight. The charge of the court below was therefore erroneous, and the judment must be reversed.

Judgment reversed.