Lewis v. Jones.

oral evidence that it was to have no validity except in a certain event.

When the parties have deliberately put their engagement in writing in such terms as import a legal obligation without any uncertainty as to the object or extent of such engagement, it is presumed that the whole contract of the parties and the extent and manner of their undertaking have been reduced to writing; and hence oral testimony, of a previous colloquium between the parties, or of conversations and declarations at the time when it was completed, will not be admitted to substitute a new and different contract for that actually committed to writing. Thus, parol proof, is inadmissible to show that an absolute agreement for the payment of money was to be performed only in a certain event. (1 Greenl. on Ev. § 275; Thompson v. Ketcham, 8 J. R. 192; Wells v. Baldwin, 18 J. R. 45; 1 Cowen, 249; 1 Hill, 116; 1 Greenl. on Ev. § 281.) So where the instru ment purported to be an absolute engagement to pay at a specified day, parol evidence of an oral agreement at the same time that the payment should be prolonged or depend upon a contingency, or be made out of a particular fund, has been rejected. (3 Camp. 57; 5 Pick. 506; 5 Verm. 114, 152; 7 Mass. 518; 17 Wend. 190; 13 Wend. 527; 8 J. R. 192; 4 Gray, 504, 506; Woodbridge v. Spooner, 3 B. & Ald. 233; 1 Gow. R. 74; Edwards on Bills, and notes from 313, 314, 315, and cases cited.) This court, at general term, in Hauck v. Hund, (1 Bosw. 431,) (disapproved by the court of appeals upon another point) holds to the same effect.

In Chester v. The Bank of Kingston, (16 N. Y. R. 336,) the only question necessarily arising and decided is, that the bond in question having been given as collateral security for the notes of the respondents, evidence of the parol agreement would be admissible to show that payment of the debt satisfied the bond. The evidence would not contradict the terms of the bond. The evidence merely goes to show that the purpose and intent for which it was given had been accomplished. The debt for which the bond was given having been paid, satisfied the bond. The evidence

Lewis v. Jones.

clearly established a total failure of the consideration of the bond, and under all the authorities, was clearly admissible. Comstock, J., at page 341, says: "Where there is a perfect delivery of a written obligation, it is plain that evidence cannot be given of a cotemporaneous parol agreement contradicting the terms of the instrument or impairing its force." In Prall v. Hinchman, (6 Duer, 351,) the question now under consideration did not arise, nor was it discussed.

In Bernhard v. Brunner, (4 Bosw. 528,) the defense set up was a quasi fraudulent possession of the check sued upon by the plaintiff, and also an averment of an entire want of consideration.

The evidence did not seek to vary the terms of the contract as imported by the check, but tended and was offered, as tending to show, an impeachment of the title of the plaintiff; that the delivery of the check by the defendants was conditional, and a total want of consideration.

In Moore v. Cross, (19 N. Y. R. 227,) no such question arose, and it was simply held that where one who, for the accommodation of the maker, indorses his note payable to the order of a third person, is liable thereon to such payee as an indorser, and not as maker or guarantor. McGevey made his note to the order of the plaintiff, and in pursuance of an agreement the note was indorsed by the defendant for the accommodation of the maker. The note was discounted at a bank, and being unpaid at maturity, was duly protested and taken up by the plaintiff.

The case of Hauck v. Hund, (1 Bosw. 431,) involved the same principle, and in that respect, was overruled by the court of appeals.

It is clear that the evidence offered was not admissible, inasmuch as it directly tended to vary the times of payment and terms of the written instruments upon which these actions are brought. The ruling and direction given by the learned court below, were correct, and judgment must be entered for the plaintiff in each action, in accordance with the verdict, with costs. Ordered accordingly.

Byrne v. Weeks.

JAS. P. BYRNE, Plaintiff and Appellant v. JACOB WEEKS, Jr., Defendant and Respondent.

1. The master of a vessel, who signs a bill of lading by which he acknowledges the receipt on board, of goods, of a designated kind and a specified quantity, and agrees to deliver the same to the shipper or his assigns, on payment of freight, at a specified rate per ton, is bound to deliver to one purchasing the goods in transitu and taking from the shipper, an assignment of the bill of lading, in good faith, and relying thereon, goods of the kind so designated, and the specified quantity thereof.

2. An acceptance of goods of the designated kind, but less than the specified quantity thereof, after discovering that there are more goods of one designated kind and less of another on board than the bill of lading calls for, but the same aggregate quantity in all, does not absolve the master from the liability contracted by the bill of lading, nor impose upon such an assignee of it a duty to take more of one kind or accept less of another, than the bill of lading specifies.

8. Where, in such a case, after a part delivery, the master refused to make a further delivery, unless the assignee would accept a delivery of all the goods on board as a performance of the carrier's contract, which the assignee declined to do, and the master thereupon sued the assignee and recovered judgment for the whole freight; issued execution thereon, and caused the goods remaining on board to be levied on as the defendant's property, and to be removed and stored, and they were subsequently sold by the dspositary to satisfy his claim for storage, and at such sale they were purchased by such assignee-the master thereby loses his lien on the goods so levied on for freight; and the assignee obtaining possession as such a purchaser, does not obtain a delivery under the bill of lading, and is not liable for the freight of such goods-they having been so bought, in ignorance of any claim or lien thereon in favor of the master for freight.

4. That judgment, having been reversed, is no evidence of a delivery and acceptance of all the goods called for by the bill of lading.

5. In an action by an assignee of the master's claim for freight, where the assignment is made after a part delivery of the cargo, and a refusal to deliver the residue of it; the assignee of the bill of lading, may deduct from the amount of the freight payable upon the goods delivered, the value of the goods not delivered pursuant to the contract contained in the bill of lading. (Before WOODRUFF, MONCRIEF and ROBERTSON, J. J.) Heard October 9, decided November 10, 1860.

APPEAL, by the plaintiff, from a judgment rendered on a trial had before Mr. Justice WOODRUFF, without a jury, in December, 1859.

Byrne v. Weeks.

This action is brought by James P. Byrne, as assignee of the claim and rights of one Patrick Fegan, against Jacob Weeks, Jr., to recover the freight of a cargo of coal, transported on the canal boat Black Warrior from Port Carbon, Penn., to the port of New York, and for demurrage. Patrick Fegan owned the canal boat, and his son Thomas Fegan (between 18 and 21 years of age) was the master.

By a bill of lading, dated April 18, 1855, signed by Thomas Fegan, he acknowledged that O. F. Moore had shipped on the said boat, in good order and condition, (but not stating in the body of it what was. so shipped,) to be delivered to Moore or his assigns, at New York, "he or they paying for the said coal, at the rate of $1.90 per ton, and demurrage at the rate of $10 per day for any detention over three days." On the margin was written: "Tons, lump coal broken, 78, egg; 100, stove, Chestnut;" also, "178 tons, of 2,240 lbs., of Tunnel Vein Red Ash coal."

On the 26th of April, 1855, before the arrival of the boat at New York, the defendant, relying on the truth of the matters stated in the bill of lading, purchased the cargo of coal from Moore, and took an assignment of the bill of lading. The boat arrived at New York, April 30, 1855; and when about 10 tons of egg coal had been delivered, it was discovered that the boat contained only 78 tons of stove coal, and had on board 100 tons of egg coal. The master delivered, in all, 76 tons of egg coal, and 49 tons, 11 cwt., 2 qrs. and 17 lbs. of stove coal; and then refused to deliver more unless the defendant would receive the residue of the egg coal. This the defendant refused to do, but demanded the residue of the stove coal on board-and offered to receive enough of the egg coal to make up 78 tons—and also offered to receive the kinds specified in the bill of lading, and the quantity of each therein specified. There was no detention of the boat beyond the three days, by reason of any want of readiness of the defendant to receive the coal called for by the bill of lading. The value of stove coal was greater than that of egg, by twentyfour cents per ton, and was of the value of $3.26 per ton.

Byrne v. Weeks.

Thomas Fegan demanded freight of defendant for 178 tons, at $1.90 per ton, and payment being refused, he sued the defendant in the Marine Court, and recovered judgment on the 16th of May, 1855, for the whole claim; issued execution thereon, and had it levied on the coal in the boat, as being the defendant's property, and caused the coal to be removed to the coal yard of H. B. Purdy, for storage, who subsequently, about the 24th of July, 1855, sold it for the storage; and, at such sale, it was bought by the defendThat judgment was reversed, and a new trial was

ant.

ordered.

On the 29th of January, 1858, Thomas Fegan, by a sealed instrument in writing, assigned all his claims against the defendant for freight, and for an alleged conversion of the coal, to Patrick Fegan; and he, on the 30th of June, 1859, by a like instrument, assigned the like claims to the plaintiff; who commenced this action in August, 1859, to recover $338.20, the freight alleged to be due, and also $160 for sixteen days demurrage.

The court decided that the defendant was liable for freight, only upon the quantity of coal actually delivered, viz., $239.08; and was entitled to a deduction from this sum of the value of the coal called for by the bill of lading and not delivered, viz., $170.06; and for the difference, being the sum of $69.02, with interest thereon from the time of suit brought, viz., $2.05, (in all $71.07;) he ordered judgment for the plaintiff.

A more detailed statement of the facts is contained in the opinion of ROBERTSON, J. The plaintiff filed various exceptions to the decision of the court, and from the judgment entered thereon, appealed to the general term.

Francis Byrne, for Appellant.

B. Slosson, for Respondent.

ROBERTSON, J.-This action was tried at special term by the court, without a jury, and the appeal from the judg