Stephen Putnam, Respondent, v. George Furnam et al., Appellants

Stephen Putnam, Respondent, v. George Furnam et al., Appellants. (Submitted September 30, 1877; decided October 9, 1877.) This action was brought to recover for the use of plaintiff’s boat for storage purposes. Plaintiff, who was a common carrier upon the Erie canal, received a boat load of fruit and vegetables for transportation to New York. The property was shipped by one Lyon and consigned to defendants, who were the owners. The bill of lading contained this clause: “On arriving in New York, master to hold the above cargo for ninety days or less (optional with the owners), and to receive therefor the sum of $180.” Plaintiff claimed to recover this sum, and on the trial the bill of lading was offered in evidence; this was obj ected to as immaterial, and that no such contract was set up in complaint. It appeared that the property arrived in good order, defendants elected to leave it on board the boat for the specified time, and paid part of the price agreed on. The objection was overruled. Held, no error; that although defendants were not parties to the bill of lading, except being named as consignees, yet, as they adopted it, elected that their property should remain on board for the time specified and paid part of the price, they were bound by its terms; that plaintiff’s liability as common carrier ceased upon the arrival of the boat with its cargo in good order and ready for delivery, upon notice of arrival to defendants and their election not to remove the cargo. The defendants’ counsel requested the referee to find certain facts, which he refused, and said counsel excepted. Held, that as the facts were not so incontrovertibly proved as to make the refusal error of law, such refusal was not good ground for exception; that if plaintiff desired findings one way or the other, according to the evidence, he should have applied to the court for an order upon the referee for a supplemental report. {Van Blyck v. Hyatt, 46 N„ Y., 259.) ■» John H. Knox, for appellants. O. J. Brown, for respondent. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur, except Folgee and Miller, JJ„, absent Judgment affirmed.