| Conn. | Apr 8, 1926
Lead Opinion
The Pennsylvania Railroad, upon receipt from plaintiff of eight hundred and twenty-five boxes of glass for transportation, gave to it a nonnegotiable bill of lading issued under the Federal Bills of Lading Act. That Act does not require the carrier to secure the surrender of the bill of lading before the delivery of the shipment, but it gives it the privilege of refusing to make delivery except upon its production and surrender. The defendant, having made wrongful delivery to the consignee without requiring *346
the production and surrender of the bill of lading, took the risk of indemnifying the plaintiff, if it suffered a loss in consequence of its act, in an action of conversion arising out of the obligation of the carrier created by the bill of lading. Pere Marquette Ry. Co. v.French Co.,
The right of the plaintiff shipper to stop the delivery of the goods in transitu continued until defendant had finally delivered them to the consignee. Aguirre v.Parmelee,
Defendant's first point is that the trial court erred in holding that a duty was imposed upon defendant to deliver this shipment only upon presentation of the bill of lading, and that there was a misdelivery of the shipment. The court did not so rule, but did rule that there was a misdelivery. If the court had ruled that defendant could only deliver the shipment upon presentation of the bill of lading, the plaintiff was fully authorized, in a case of insolvency, to stop delivery while the goods were in transit and impose upon defendant this condition. Possession of the bill of lading remained in the plaintiff and could only pass into that of the defendant by plaintiff's own act. While defendant could take the risk of delivery without requiring the presentation of the bill of lading, the plaintiff, in the case of insolvency, in the reasonable exercise of its right to stop delivery, might condition delivery upon such a presentation. The defendant denies that the plaintiff exercised its right to stop the delivery of these goods in transit, and claims that, consequently, there was no misdelivery, for the reason *347
that the plaintiff's notice to defendant was inadequate in its instruction, and incapable of being understood by defendant as a notice from the agent of plaintiff. The notice by the plaintiff to defendant, by telegram and letter, not to deliver these goods to the consignee except upon presentation of the bill of lading, did not specify the ground of the plaintiff's notice to be the insolvency of the consignee. It did not have to state the nature or basis of the plaintiff's claim to stop the delivery of the goods. The law gave the plaintiff the right to stop delivery only in case of the insolvency of the consignee, and the defendant must be presumed to have known this. Allen v. Maine Central R. Co.,
Defendant also claims that the defendant was not obliged to construe the telegram signed "S. Bryan Kneass, Eastern Sales Agency," and the letter written on the letterhead of plaintiff but only bearing the typewritten signature, Eastern Sales Agent, as a request, order or direction from the plaintiff. The defendant's freight agent, Hedderly, fully understood that both *348 telegram and letter were an order or direction; this is apparent from his reply telegram and letter to plaintiff, in which he said, "Instructions received too late to stop delivery," so that this claim is of no significance. Plaintiff's telegram and letter, taken alone, were sufficient to have apprised the carrier of their source and authenticity. The trial court's finding that the statements in the telegram and letter sent by defendant's agent to the plaintiff were untrue, and were intended to deceive the plaintiff and thereby evade responsibility for the loss of the glass caused by him, not only established the agent's knowledge, but also tended to prove the defendant's liability for the wrongful delivery which the agent was endeavoring to cover up by his untruthful and deceitful statements.
Defendant's second and third points are, the court's failure to rule that there was no proof of the contents and condition of the contents of these boxes of glass, or of their value, at the time of delivery to the initial carrier. In its draft-finding defendant asked the court to find that plaintiff delivered eight hundred and twenty-five boxes of glass to the initial carrier and that the value of this shipment was $3,379.35. The court found that the value of the shipment and the boxing was $3,367.99, being their invoice price and the exact value as fixed in the draft-finding, less the freight charge. These admissions by defendant suffice to support the trial court's conclusion as to the contents, condition and value of this shipment, and make unnecessary further consideration of this subject-matter. The findings complained of in these particulars are supported by the excerpts from the evidence attached to the exceptions to these findings.
There is no error.
Dissenting Opinion
I am unable to assent to that portion of the opinion which holds that the notice given to the defendant's agent was a sufficient exercise of plaintiff's right of stoppage in transitu. No doubt such a notice need be couched in no particular form, and very likely it is not necessary to refer in it to the actual or presumed insolvency of the consignee. But it ought at least to have a degree of certainty commensurate with the notice of the right it asserts. "There must be some act on the part of the vendor indicative of his intention to repossess himself of the goods." Brewer, J., in Rucker v. Donovan Feiferlich,
The telegraphic notice in this case was in these words: "Do not deliver to United Plate Glass Corpn car N H eight five four naught eight excepting upon presentation of bill of lading." The letter supplementary to it reads as follows: "I telegraphed this afternoon instructing you not to deliver car N H 85408 to the order of the United Plate Glass Corp. excepting upon presentation by them of the original bill of lading. Will you please see that these instructions are carried out? According to my experience, the bill of lading is required by the Railroad Companies before authorizing delivery, and please consider it a requirement in this case." Here certainly is expressed no clear intention on the part of the vendor to resume dominion over the goods, or to have them withheld because of the actual or presumed insolvency of the consignee. The communications might in all reason be read as simply indicative of the vendor's desire that, for some reason, the surrender of the bill of lading should be made a condition of the delivery of the goods; perhaps because some suspicion as to the buyer's responsibility had been aroused and it wanted time to investigate before deciding whether to exercise its right of stoppage; perhaps because it wished to prevent the consignee from obtaining possession of the goods before it had received payment for them; perhaps because it feared that otherwise some person not entitled to do so might obtain possession of them by falsely representing himself as authorized to act for the consignee; perhaps for some other reason.
The telegram and letter seem to me to be in themselves an insufficient notice of the vendor's claim. The finding of the trial court that the subsequent communication *351
by the defendant's freight agent to the plaintiff's agent were untrue, and were intended to deceive the plaintiff and so evade responsibility for the loss of the goods, can hardly authorize this court to make the inference of fact that the telegram and letter were understood by the freight agent, before delivery was made, to be an attempt to exercise the right of stoppagein transitu; they indicate that, after the delivery, he believed that he or his subordinates had done something which might entail unpleasant results for themselves or the defendant, but they certainly do not show, at least so far as to preclude reasonable disagreement, that the telegram and letter, when received and acted upon, were understood as a notice of the vendor's claim to that right; that fact, if it was a fact, could only be found by the trial court. In the absence of such an understanding on his part at that time, which might be imputed to the defendant, the freight agent's falsity and attempts to evade responsibility, made after the delivery, cannot constitute even admissions against the defendant, far less establish its liability.Perry v. Haritos,