42 Pa. Super. 390 | Pa. Super. Ct. | 1910
Opinion by
This action was brought in' the name of William C. Lyon to the use of Kenneth M. Blakiston, trading as P. Blakiston’s Son & Co. Before the jury was sworn the record was amended by striking out the name of William C. Lyon and retaining the name of Kenneth M. Blakiston as legal plaintiff. The form of action was assumpsit, and the cause of action declared upon was the breach of a contract, of which the following shipping receipt issued by the defendant, a corporation, to the present legal plaintiff was a material part:
“Received of P. Blakiston’s Son & Co.
“ (1) One Box of books.
“Marked—
“W. C. Lyon, 200 Judd Bldg., Honolulu.
“For shipment per............or other steamer.
“Value 152.00............for which we charge..........
“Hawaiian Territory.”
The blank spaces are as they appear in the copy of the receipt attached to the affidavit of defense. Then follow certain pertinent clauses, the material parts of which we quote:
“It is part of the consideration of this contract, and it is agreed that the said Davies, Turner & Co. are forwarders only and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carriers to whom the same may be by said Davies, Turner & Co. intrusted, or for any loss arising at any time from the dangers of railroads, ocean or river navigation, .... or from any cause whatever, whether arising from the negligence of servants or employees or otherwise, unless in every case, the same is proved to have occurred from the fraud or negligence of said Davies, Turner & Co.”
“And if the same is intrusted or delivered to any express company, railroad, vessel or other carrier, whether named in this receipt or not (which said Davies, Turner & Co. are hereby authorized to do, subject to all the usual conditions of transportation of such carrier), such company or person so selected shall be regarded exclusively as the agent to the shipper or owner, and as such, alone liable, and Davies, Turner & Co. shall not be, in any event, responsible for the negligence or nonperformance of such company or person.”
On the trial of the case the plaintiff gave evidence tending to establish the following facts: The plaintiff was a publisher of books in Philadelphia'. W. C. Lyon was a bookseller in Honolulu. Lyon ordered from the plaintiff, by letter, seven sets of a medical work of several volumes, to be delivered
The first question to be considered is, whether the consignor could maintain the action as legal plaintiff. In the foregoing statement we have said that the books were ordered to be delivered to Lyon in Honolulu. The letter containing the order was not produced, but the plaintiff’s shipper testified without objection, that the books were to be so delivered, and while the effect of his testimony on this point was weakened by his cross-examination, it was not wholly destroyed. The subsequent conduct of the parties was in harmony with the contention, that, in the intention of plaintiff and Lyon, the books were to be delivered to the latter in Honolulu. In one of the most recent Pennsylvania cases upon the subject it is said to be well settled that in the absence of an agreement to the contrary, when a vendor sells goods to a vendee residing at a distance, a delivery of the goods to a carrier for transportation is a delivery to the purchaser; and especially is this true when a bill of lading naming the purchaser as consignee is transmitted to and received by the purchaser: Dannemiller v. Kirkpatrick, 201 Pa. 218. This doctrine is relied on by appellee’s counsel but it should be noted that the same case is authority for the proposition, that if it is the intention of the parties, and it so appears from the contract,
Next to be considered is the question of variance. The substance of the allegations of the statement of claim relating to this question is that the plaintiff delivered to the defendant, “which is a corporation engaged as a common carrier in the carriage or transportation of goods to the various parts of the world,” the box of books in question consigned to W. C. Lyon, to be by the defendant “safely carried and delivered” to W. C. Lyon; that the defendant “undertook to handle the said books and deliver them to the said W. C. Lyon, as provided in said shipping receipt” (which was attached to and made part of the statement of claim); and that the defendant neglected to deliver the box of books to Lyon within the time required by the terms of the shipping receipt, by reason of which the books became worthless and of no value to Lyon. We remark in passing that the evidence tends to show that they also became pecuniarily worthless to the plaintiff, or any one else, by reason of a new edition having been issued before the offer was made by the defendant to return them to the plaintiff. The reasons stated by the learned trial judge for giving binding directions for the defendant, were first, that there was a variance because the plaintiff had alleged but failed to prove that the defendant was a common carrier; second, that even if the statement were amended so as to charge, or could be construed as charging, neglect or failure to perform its undertaking to forward, there was no evidence to sustain the allegations.
In Bank of Kentucky v. Adams Express Co., 93 U. S. 174, Strong, J., said “We have already remarked that the defendants were common carriers. They were not the less such because they had stipulated for a more restricted liability than would have been theirs had their receipt contained only a contract to carry and deliver. What they were is to be determined by the nature of their business, not by the contracts they made respecting the liability that should attend it. Having taken up the occupation, its fixed legal character could not be thrown off by any declaration or stipulation that
But, assuming that the evidence was insufficient to sustain the averment that the general business of the defendant was that of a common carrier in the strict sense of the term, does
The judgment is reversed and a venire facias de novo awarded.