Eberbach v. Clyde Steamship Co.

74 Pa. Super. 79 | Pa. Super. Ct. | 1920

Opinion by

Linn, J.,

Plaintiffs have judgment for the value of four lots of tobacco consigned to them brought here by defendant, and delivered to an unauthorized drayman who stole the property. Defendant appeals and assigned two errors : (1) the refusal of the court to enter judgment n. o. v.; (2) the refusal to grant a new trial. The only exception taken to the charge was to the refusal of binding instructions for defendant.

(1) Witnesses for defendant testified that the tobacco arrived and was delivered to a drayman; and the verdict determines that the delivery was to an unauthorized person. That breach of contract being found, a consequent liability to plaintiffs in some amount arises, and accordingly judgment non obstante can not be entered. Appellant also contends that since the tobacco was shipped on bills of lading describing the shipments as “the property described below in apparent good order except as noted (contents and condition of contents of packages unknown),” plaintiffs must prove that the tobacco described as shipped was actually delivered to the initial carrier. Plaintiffs concede that. Defendant contended during the trial that the depositions read in evidence by plaintiffs to show that the packages contained the tobacco when delivered to the first carrier, did not show that fact, and plaintiffs met that contention by putting in the affidavit of defense, in which defendant neither had denied specifically nor by necessary implication that the tobacco had been delivered to the first carrier as averred in the statement of claim. The affidavit of defense stated that defendant “admits that on or about the 12th day of September, 1916, it received ......twenty cases marked ‘Smoking Tobacco’ for ......delivery to plaintiffs......but that it has no knowledge of the contents nor of the value of the contents of said cases or any of them and demands proof thereof at the trial.” Sections 6 and 8 of the Practice Act of 1915 (P. L. 484) provide that, (with certain inapplicable exceptions) every allegation of fact in plaintiff’s statement of claim “shall be taken to be admitted,” if “not denied specifically or by necessary implication in the affidavit of defense,” and that it shall not be sufficient merely “to deny generally the allegations of the statement of claim.” As Judge Finletter said in refusing judgment below: “It is obvious that an averment of ignorance and a demand for proof are not a ‘specific denial’ nor the ‘implication’ of denial. Indeed they are not even a ‘general denial’ so that if the act means anything the plaintiff’s detailed statement of the contents of the packages must be ‘taken to be admitted.’ ”

(2) As no abuse of discretion appears and no argument was made in support of the second assignment, it is dismissed.

The judgment is affirmed.