Opinion
Rehearing Denied Dec. 5, 1927.
Hearing Granted by Supreme Court Jan. 3, 1928.
Appeal from Superior Court, City and County of San Francisco; J. T. B. Warne, Judge.
Action by the Atlantic Fish Company, a copartnership composed of H. M. Colety and others, against the Dollar Steamship Line. Verdict for plaintiff. From order granting defendant’s motion for a new trial, plaintiff appeals. Affirmed.
COUNSEL
Milton L. Schmitt, of San Francisco, for appellant.
Nathan H. Frank and Irving H. Frank, both of San Francisco, for respondent.
OPINION
STURTEVANT, J.
The plaintiff brought an action against the defendant to recover damages for detriment caused to a shipment of dried fish. The defendant answered and a trial was had before the court sitting with a jury. The jury returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial. The motion was granted, and the plaintiff has appealed.
By written correspondence the Atlantic Fish Company bought from the Gorton-Pew Fisheries Company a quantity of salt fish. The fish were packed at Gloucester, Mass. By the terms of the contract of purchase the fish were to be sent to Boston, Mass. At that port they were to be reshipped under refrigeration to the purchaser at San Francisco on the President Hayes, one of the defendant’s vessels which touches at Boston and New York. On August 13, 1924, the day before the President Hayes left Boston, the seller advised the purchaser that the refrigeration department of the President Hayes was broken down, and that it could not carry the goods in refrigeration, and the seller asked for further instructions. On the same day the seller received a reply to "authorize Hayes shipment to come through under ventilation." Thereupon the goods were shipped on that steamer. A bill of lading was issued which recited, among other things, "cool stowage, not refrigeration." When the bill of lading was delivered to the shipper no objection was made by it. The shipper sent the bill of lading to the plaintiff, and when it received the document no objection was made.
The telegram dated August 12, 1924, authorizing the shipment "under ventilation," was sent by Mr. Colety, Jr., one of the members of the plaintiff copartnership. Mr. Colety, Sr., was out of town and returned August 14, 1924. On the next day about 9 a. m. he called at defendant’s office in San Francisco and talked to Mr. Herman, a person who solicits freight. The record is silent as to whether he has any other authority. Mr. Colety exhibited to Mr. Herman the telegram received by the plaintiff from the shipper and stated that the shipment must come under refrigeration. Mr. Herman left the room and returned, saying it would come under refrigeration. Neither in that conversation, nor in any other conversation, nor in any other manner, was any attempt made to have the bill of lading recalled and an amended bill of lading issued, nor to have the shipment stopped at New York and reshipped. No new consideration passed.
No claim is made that the goods were not in fact carried under "ventilation" or "cool stowage." The plaintiff’s sole claim is that they were not carried under "refrigeration."
The plaintiff claims the facts show a novation. The claim is not supported by the facts. Assuming that Mr. Herman was thereunto duly authorized to issue, amend, or alter bills of lading (facts nowhere contained in the record), the utmost that the plaintiff could assert is that the clause, "cool stowage-not refrigeration," was, by Mr. Herman, changed to "refrigeration," and otherwise that the bill of lading remained wholly unaltered.
Again, the plaintiff claims that the oral conversation between Mr. Colety, Sr., and Mr. Herman constituted an oral contract which superseded the bill of lading. It did not. All of the evidence received at the trial tending to show the oral contract did not constitute a contract of carriage. The parties to that conversation did not agree on and determine (1) what goods were to be carried; (2) what place they were to be received and to what place they were to be carried; (3) what was to be the cost of the transportation; or (4) what was to be the manner of transportation except that it was to be in refrigeration. No one of these factors can be ascertained except by an examination of the bill of lading which was then outstanding and which was not even mentioned in the conversation. In this same connection the plaintiff speaks of an executed oral agreement. It is perfectly clear that, under the facts, there was no execution whatever on either side of the alleged oral agreement. The very nature of the plaintiff’s claim is that the defendant did not execute what the plaintiff says the defendant promised to do. By the terms of the oral agreement, it is not claimed the plaintiff promised to do anything, and it is not alleged that it did anything. There was not, therefore, an executed oral agreement on the part of either of the parties.
It is settled law that a bill of lading is (1) a receipt, and (2) it is the contract of carriage between the parties. 10 C. J. 192, § 251. As the contract of carriage between the parties, the bill of lading could be altered only by a contract in writing or an executed oral agreement. Civ. Code, § 1698. This fundamental rule has been held applicable to the alteration of bills of lading. 10 C. J. 198, § 260. The evidence introduced at the trial showed no cause of action against the defendant. The trial court did not err in granting a new trial and the order should be affirmed if there is no other infirmity.
The jury returned its verdict on September 15, 1926. The judgment was entered September 16, 1926. On the fifth day thereafter the defendant served and filed a notice that it "intends to and will, on Friday, the 24th day of September, 1926," move that a new trial be granted. In other words, it combined its notice of intention to move for a new trial and its notice of motion for a new trial. The practice was not erroneous, and such speed is to be commended. The contention of the plaintiff that, because the paper was a notice of motion, it was not therefore a notice of intention is without merit.
The second ground of the motion for a new trial was "insufficiency of the evidence to justify the verdict." That is the language of the statute. Code Civ. Proc. § 656, subd. 6. The order ruling on the motion was worded as follows:
"Motion for new trial granted on ground of insufficient evidence."
The plaintiff contends the ground stated in the order is not contained in the statute. We think it is. The variance is so slight as to lead to no confusion.
The order appealed from is affirmed.
We concur: KOFORD, P.J.; NOURSE, J.