Page:Federal Reporter, 1st Series, Volume 3.djvu/348

MERBIOE V. CEBTAIN BUSHELS OF WHEAT, WIO. 341 �on board the schooner, and stipulates that "ail the deficiency in the cargo shall be paid for by the carrier and deducted from the freight, and any excess in the cargo shall be paid for to the carrier by the consignee." It does not expressly pro- vide that the recital that the cargo, -when received, consisted of 20,000 bushels, shall be conclusive, and the question is whether this is to be implied from the language used. �On first impression it would certainly seem that the bill of lading would not contain any such stipulation if it was not intended that the deficiency provided for should be that aris- ing from the cargo as represented by the carrier. Otherwise, there was no necessity for inserting the stipulation at aU, because the consignee, without any express stipulation, bas the right to deduct from the freight a deficiency in the cargo aetually received by the carrier and arising from his fault, (Davidson v. Gwynne, 12 East, 381 ; Sheels v. Davis, 4 Camp. 119 ; Edwards v. Todd, 1 Scammon, 462-463 ; Leech v. Bald- win, 5 "Watts, 446 ;) and it is not reasonable to suppose that the parties meant to insert a useless condition in a contract. �But the inference to be drawn from this consideration la not 80 strong as to be decisive, and a court of high authority has held that where, in a bill of lading, the stipulation wàs that "any damage or deficiency in cargo the consignee will deduct from balance of freight," the words "deficieney in cargo" referred to the cargo aetually received, and not to the cargo described in the bill of lading. Meyer v. Peek, 28 N. Y. 590. That decision was not made by a unanimous court, but it has been accepted and foUowed by several'subsequent cases in the same court. �In the present case, however, the stipulation very plainly shows that the parties had in contemplation the cargo de- scribed in the bill of lading, and not the cargo which rùight have been aetually received, because the stipulation provides that the consignee shall pay the carrier for any excess in the cargo. "Excess" and "deficiency" in the stipulation refer to the same "cargo," and what excess could there be except as to the cargo recited in the bill of lading? There could be no ����