Page:Federal Reporter, 1st Series, Volume 7.djvu/83

 HELLIWELL v. GRAND TRUNK RY. OF CANADA.|71

March 19th. It was all carried to London on the vessels Woodthorn and Herworth. That part carried on the Wood- thorn was delivered to her April 17th, 18th, and 19th, and she sailed on the 19th and arrived in London May 15th. That part of the flour carried on the Herworth was deliv- ered to her April 27th and 28th, and she sailed on the 29th and arrived in London May 15th, on the same day that the Woodthorn arrived.

Now, gentlemen, the first question naturally arising is: What was the contract under which the defendant undertook the transportation of this flour, and what were the rights, duties, and obligations of the parties under such contract as they in fact made? The plaintiffs have contended that the flour was received by the defendant and shipped under a verbal contract alleged to have been made on the 25th, 26th, and 28th days of February, 1880, by the witness Cole, in their behalf, with the witness Young, acting in behalf of the defend- ant; and that this contract was that the flour should be car- ried to Portland by the route and on the lines named, and should be shipped thence to London by the steam-ship Ar- gosy. It has been claimed that by this alleged agreement the defendant undertook absolutely that the flour should be car- ried on that vessel, and no other. This claim, of course, wholly ignores the bills of lading in evidence, and which con- fessedly the plaintiffs subsequently received from the defend- ant's agent. Upon looking into the bills of lading we find that they provide that the flour shall be shipped at Portland "upon the vessel called the Argosy," (or other vessel of equal class for marine insurance.)" And herein we see that the bills of lading differ from the alleged verbal contract, in that they, by their terms, give the defendant the right to ship the flour on the Argosy or on any other vessel of equal class' for insurance. It has been contended by the plaintiffs that, with reference to the vessel on which the flour was to be shipped from Portland, the alleged verbal contract must prevail as against this provision in the bills of lading, while on the part of the defendant it has been claimed that the bills of lading constitute the contract on the subject.