192 A. 144 | Pa. Super. Ct. | 1936
Argued October 12, 1936. This is an action of assumpsit to recover the value of 35 cases of tomato paste stored by plaintiff in defendant's warehouse, which defendant refused to deliver upon demand. At the trial the court gave binding instructions for defendant and later refused plaintiff's motion for judgment n.o.v., or a new trial.
The agreed statement of facts, in lieu of printing the record, is substantially as follows: On September 30, 1933, defendant issued and delivered to plaintiff two warehouse receipts for a total of 600 cases, and on October 2, 1933, four warehouse receipts for a total of 1330 cases, all alleged to contain tomato paste, the relevant portions of said receipts being as follows:
"GALLAGHER'S WAREHOUSES No. 18525, 50 South Third St., Philadelphia, Pa., Sept. 30th, 1933.
This is to certify that we have received in Storage *55 Warehouse, 810-24 S. Swanson St., Bldg. 20-2 Floor for the account of Del Gaizo Dist. Co. ex in apparent good order, except as noted hereon (contents, condition and quality unknown) the following described property . . . . . . to be delivered to . . . . . . . . . . . . upon the payment of all storage, handling and other charges.
_________________________________________________________________ Number Packages Contents Marks _________________________________________________________________
500 cases Tomato Paste 100 — 6 1/2 Oz.
F D
Del Gaizo
NON-NEGOTIABLE
G. Foti
.................................................................
* * * * * * *
GALLAGHER'S WAREHOUSES
Claims a lien for all lawful charges for storage and preservation of the goods, also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering and other charges and expenses, in relation to such goods
GALLAGHER'S WAREHOUSES
By James Gallagher, Jr.
* * * * * * *"
The warehouse receipts were identical except as to the number of cases, and a notation on one receipt for 500 cases, dated October 2, 1933, as follows: "1 case 2 cans short. 1 case 10 cans short, 16 cases stained."
Plaintiff imported all 1930 cases, alleged to contain tomato paste, from Italy. The cases were shipped in round wooden boxes containing sealed cans, so that it was impossible to ascertain the contents of the cases without opening them, or to ascertain the contents of *56 the cans without opening them in turn; and neither plaintiff nor defendant had any actual knowledge of the contents of said cases or cans. Between October 27, 1933 and February 3, 1934, plaintiff withdrew from defendant's storage house, 1895 of said cases. On February 5, 1934, plaintiff issued to one of its customers, R. Scetto and Son, an order on defendant for the remaining 35 cases, which order was presented on February 13, 1934; defendant failed to deliver the 35 cases or any part thereof. In addition to the charges paid by plaintiff to defendant, storage charges accrued for the storage month commencing February 2, 1934, on 65 cases, of which 50 cases were withdrawn on February 3, and the remaining 15 cases on February 5, 1934. For said storage there was a charge of $1.30, which plaintiff has never satisfied or offered to satisfy.
At the trial the court sustained defendant's objection to plaintiff's offer to prove that the merchandise covered by the warehouse receipts was packed in cans in Italy and shipped to plaintiff in Philadelphia in the original closed packages, that plaintiff through its agent, Tofini, sold and distributed 1895 cases of the merchandise to plaintiff's customers and there were no complaints from any of the distributees that any of the packages contained any substance other than tomato paste; and to the offer to prove by the witness, Scetto, that he distributed 80 cases out of the lot covered by the warehouse receipts among his customers and there were no complaints from any of them that the contents of the cases contained any substance other than tomato paste.
Plaintiff relies upon the warehouse receipts as prima facie evidence of the receipt of the described merchandise. He concedes that where a warehouseman has redelivered a package to a consignee or owner, when it is found that the contents are different than described in the receipt, proof must be made that the contents of the package conform to the receipt; but contends that *57
where a warehouseman fails in his duty to make redelivery of the package and contents, the receipt is prima facie evidence of the contents. The giving of a receipt by a carrier stating that goods were received "in apparent good order, except as noted, contents and condition of contents of packages unknown" is an admission as to conditions visible and open to inspection: Isdaner v. Phila. Reading Ry. Co.,
With this rule in mind, did the trial court properly reject the offers made by plaintiff?
"(b) Existence of the Whole inferred from a Part, or of onePart from Another. To argue to the whole from a part, or to one part from another, is also, in the last analysis, an argument from one effect of a common cause to another effect. But for practical purposes it is sufficient to treat the inference as an immediate one. The condition of the inference's propriety is that in human experience the whole has been found probably to exist with certain related parts; it is then admissible to use the existence of one of the parts as evidence from *59 which to infer the presence of the whole or of one of the associated parts, — as where, observing a floating iceberg, it is inferred that beneath the water's surface is a larger mass of ice in the proportion usually found associated with such a mass above water; or where on observing, from one side of a locomotive, two driving-wheels, we infer that on the other side there are two similar ones. This sort of inference is common enough in trials, but does not seem to have raised any difficulties requiring rulings": Wigmore, Evidence, Vol. 1 (2nd) § 438, p. 776. "Same: Samples as Evidence of an Entire Lot. It is on the present principle that a sample is receivable in evidence to show the quality or condition of the entire lot or mass from which it is taken. The requirement is merely that the mass should be substantially uniform with reference to the quality in question, and that the sample portion should be of such a nature as to be fairly representative. When the sample is not taken from the very substance or article in issue, but from another one, the only difference in the argument is that another inference is introduced, i.e. the inference of Identity (ante, § 411); it must first be evidenced that substance A is in nature identical, for the purpose in hand, with substance B, and then a sample from B, working through a double inference, evidences the nature of substance A": Wigmore, Evidence, Vol. 1, (2nd) § 439, p. 778.
In City of Philadelphia v. Rule,
In Dubois v. Bigler, Young Co.,
In Norfolk Western Railway Co. et al. v. Keystone PackingCo.,
In Com. v. Goodman,
To prove its case, plaintiff must rely upon inferences drawn from inferences. There is no longer any question that such process of reasoning by the jury is not objectionable. Mr. Justice MAXEY made this clear in Neely v. The Provident Life andAccident Insurance *62 Co.,
See also Reed v. Horn's Motor Express., Inc.,
123 Pa. Super. 411 ,187 A. 275 .
Viewed in the light of these principles, we are persuaded that the testimony offered by plaintiff should have been received. Its weight and persuasion was a question for the jury. The fact that plaintiff's customers had purchased 1895 of the 1930 cases from defendant's warehouse and no complaint made by any of the customers that the cases did not contain tomato paste, was evidence that the 1895 cases did contain tomato paste; and from this the jury would be warranted in inferring that the 35 cases involved also contained tomato paste. It may be true, as suggested in the opinion of the court below, that the failure to make complaints by the various customers could be accounted for on various assumptions, yet the extreme improbability that there would be no complaints by the various purchasers of such a large number of cases would be such a series of circumstances as would warrant the jury in inferring that the goods delivered were tomato paste, from which the jury would be further justified in inferring that the remaining cases, being less than two per cent of the entire number of cases delivered to the warehouseman, were of the same character as had already been redelivered by the warehouseman.
Defendant urges that the judgment was properly entered because of the failure of plaintiff to satisfy or offer to satisfy the lien for storage charges. The refusal or failure to deliver the 35 cases by defendant was not based on this ground. "The general rule is well *64
settled that, before an action for conversion or replevin for goods stored with a warehouseman, or an action of assumpsit on the implied promise to deliver the property or pay its value, may be maintained, it is necessary to pay or tender payment of the amount due for storage and other charges for which the warehouseman has a lien on the goods. Nevertheless a warehouseman cannot defend an action for nondelivery because of nontender of storage or other charges for which he has a lien on the goods where he bases his refusal to deliver them on other distinct grounds, and failure to make such a tender is excused where the warehouse is closed without any person being in charge to whom payment can be made, and there is no other warehouse in the state where a demand and tender of charges can be made": 67 C.J. § 244, p. 560, citing cases from various jurisdictions, among which isClowes v. Hughes Bros.,
Before delivery the warehouseman was entitled to the storage charges, but it would be a useless thing for plaintiff to have paid or offered to pay the storage charges, when it appears that the failure to deliver the cases was not based on this ground.
The assignments of error are sustained and the judgment is reversed with a venire facias de novo.