Opinion
Argued March 14, 1873
Decided June term, 1873
Hamilton Odell for the appellant. Charles F. Sanford for the respondent.
The oil destroyed by fire, the value of which is the subject of the present controversy, was received by the Union Transportation and Insurance Company, at Cincinnati, to be transported by that company to New York at a stated price for the entire route, and upon certain conditions, one of which was, that the company should not be liable for damages or loss by fire, or other casualty which should occur to the oil while in depots or in places of transhipment. Under this contract that company would doubtless have been liable had the oil been damaged or destroyed while on the defendant's road or boat, by any of the perils hazarded by common carriers not excepted in the contract for its transportation; and it is equally clear that if the action had been brought against that company to recover the value of the oil, it would have been shielded by the exception in the bill of lading. ( Maghee v. The Camden Amboy R.R. Co., 45 N.Y., 514, 519.) This proposition I do not understand to be questioned; not because the Union company, who became responsible for the safe delivery of the oil in New York provided against its liability for damage to, or the loss of, the property by fire in the places specified, did not as it did in some other respects, make provisions for the exemption of connecting lines. The plaintiff insists that the defendant, who was the last carrier on the route to New York, to which the Union company had agreed to transport it, is not entitled to the benefit of the condition referred to, upon which the Union company agreed to carry it to that city. The contract made by the Union company was for a service to be performed, not only for a compensation to which it would not have been entitled until the property had been transported to, and ready for delivery in New York, but by it that the company would have incurred a liability for damage to, or a loss of it, had not the loss occurred in a depot or place of transhipment. The contract having been made by that company for the transportation of the oil from Cincinnati to New York was, including the condition referred to, commensurate with the undertaking to transport it over the whole and every part of the route. Had it been a contract which did not carry the liability of the first carrier beyond the distance traversed by its cars, the condition could not avail the defendant; but as it is, the defendant, instead of being the party who contracted with the plaintiff, was aiding the first carrier in performing its contract, and for a compensation to be equably apportioned and paid by that carrier, to whom the defendant was but a subordinate, and shielded by the condition made by that company against a liability for loss by fire. ( Maghee v. The Camden Amboy R.R. Co., 45 N.Y., 514, 521.) A point was made upon the argument that the bill of lading was not made simultaneously with the shipping of the oil, but two days subsequent, and hence that it does not afford an inference that its terms were assented to. This fact does not appear among the facts found, but otherwise, and although the evidence was to that effect, no exception appears to have been taken to the finding.
Whether or not the inference should be without some evidence to the contrary that the agreement as made was merged in the one subsequently written and received by the purchasing and shipping agent, without dissent, is not now necessary to be considered.
The judgment appealed from should be affirmed.
All concur.
Judgment affirmed.