20 Pa. Super. 378 | Pa. Super. Ct. | 1902
Opinion by
The plaintiff’s statement specifically averred that the steamboat headlight, to recover the value of which this action was brought, was the property of the plaintiff; that upon the order of one Isaac Fry, who assumed to act for and on behalf of the defendant, the headlight was delivered to a common carrier at
It thus appears that the plaintiff never agreed to sell or deliver the headlight to Fry, with whom they dealt as the agent of the defendant. The contract contemplated a sale and delivery to the ■ defendant company. The goods were delivered to the common carrier consigned directly to the defendant, and had Fry been authorized to make the contract into which he entered, such delivery would have vested the title and possession in the defendant. The defendant received the goods from the carrier and receipted for the same, although this was done in ignorance of the fact that Fry had assumed to act as defendant’s agent in the transaction, the delivery of possession thus became actual; no question arising out of a confusion of goods is involved in the controversy, the defendant has the property which is clearly identified. The plaintiff did no act which could invest Fry with title to or possession of the property. The only way in which the defendant could assert a right to retain the possession of the property as against the plaintiff was to adopt the act of Fry, who had without authority previously delegated acted as its agent; this would involve an acceptance of the contract and payment according to its terms. If the defendant disaffirmed the act of Fry, then it was required to surrender the fruits of the contract, and permit the plaintiff to resume possession of the property. .When, under the undisputed facts, the defendant elected to retain possession of the headlight it became liable to the-plaintiff for the market value of the same.
The judgment is affirmed.