92 Pa. Super. 63 | Pa. Super. Ct. | 1927
Argued October 12, 1927. Judgment was entered in favor of the plaintiff against the defendant for want of a sufficient affidavit of defense. The pleadings disclose that in August, 1922, defendants by contract in writing bought two lots of metal which were to be shipped f.o.b. cars, Dover, N.J., "sight draft against bill of lading." Defendants directed the plaintiff to ship the metal to one, Dougherty, in Philadelphia, to whom they had sold it. Shipment was accordingly made and Dougherty refused to accept or pay for it and the metal was placed in storage by carrier as defendant's property and afterwards sold at public sale.
In December, 1922, the plaintiff brought suit against the defendants for the metal and obtained a verdict for the full amount of their claim with interest and costs which was subsequently paid. *66
On September 4, 1925, the Pennsylvania Railroad Company, the carrier, made demand upon the plaintiff as the original shipper for the payment of the freight and demurrage charges, credit being allowed for the proceeds of the public sale of the metal at the instance of the railroad company for non-payment of carrying charges and storage and after suit, payment of the same was made. Demand was then made by plaintiff for the payment of said items by the defendants and they refusing, the present suit instituted. The only question raised by the affidavit of defense was whether the present suit is barred by reason of the matter being res adjudicata for the reason that it should have been included in the first suit. The authorities cited by the appellant are those which decide that a man cannot settle his cause of action by bringing two suits where one would suffice, that as to all matters which could have been presented in the first suit, a second suit cannot be maintained. All matters which might be put in issue are concluded by the judgment and should not again be the subject of litigation. It is hardly necessary to quote cases in support of this position, but we do not think that they apply to the present condition. Under the terms of the present contract, the metal was sold to the defendant by the plaintiff "f.o.b., Dover" and the title passed at that place and the railroad company became the agents for the defendants. When upon refusal of the metal, the carrier sold the consignment to pay its charges, it had then the right to ask the plaintiff to pay the charges of carriage, but as between the parties, the duty was upon the defendant to pay the freight.
The shipper is primarily liable to the railroad company for the freight and the carrier has nothing to do with the arrangements between the parties. This has been decided both by the Federal courts and by our own State courts. C.B. Q. Railroad Co., v. James *67
B. Berry's Sons,
The plaintiff, having paid these charges, had the undoubted right to recover over from the defendant. When the suit was brought for the price of the metal, most of the demurrage charges did not exist and while the plaintiff could have paid the freight and obtained a right of action for the sum so paid against the defendant, he had no right of action until he had paid. The presumption was that the freight had been paid by the consignee. The right of the plaintiff to bring a suit for the freight and demurrage charges did not accrue until he had paid them and that was long after the first suit was determined. The consignee was ultimately liable for all storage and freight. Miller v. Seaman,
The first suit is res adjudicata upon the question that defendants owed the plaintiff for the metal shipped and that adjudication carried with it, as between the parties, consignee's liability to pay the freight and demurrage charges. It is still requisite to the bringing of a suit that the amount claimed must be due and only such items as are due and demandable when the action is brought can be recovered in it. Stradley v. Bath Portland Cement Co.,
The judgment is affirmed. *68
