38 Pa. Super. 416 | Pa. Super. Ct. | 1909
Opinion by
The plaintiff sold five car loads of coal, consisting of 150 gross tons at $1.10 per ton, to the Delaware Hardwood Lumber Company, of Trenton, N. J., and consigned the coal by way of the Pennsylvania Railroad Company, from his mine at Philipsburg, Pa., freight charges to follow to the lumber company at Trenton, on September 18 and 19, 1906. After sending bills and trying to locate the Delaware Hardwood Lumber Company by correspondence, the plaintiff, three months later, made inquiry of the defendant, as to what disposition had been made of the coal
The facts were developed by the plaintiff through the correspondence with the railroad officials, and which he offered in evidence. This action is in assumpsit, and the plaintiff urges that the letters of the defendant establish the fact that there was a refusal by the consignee to accept the coal, and that the defendant being a common carrier, owed the duty to the plaintiff of notifying him of such refusal, and that having so failed, it was such a nonperformance of its duty as common carrier as would entitle the plaintiff to recover the value of the coal. The defendant offered no evidence and urged that under the pleadings and evidence in the case, the court should direct a verdict in its favor. The case was submitted to a jury, and a verdict in favor of plaintiff was returned, which on motion was subsequently set aside and judgment non obstante veredicto was entered in favor of the defendant.
. It is undisputed that the plaintiff was not the owner of the coal at the time of the sale, and that the coal was rightfully in the possession of the railroad company as a common carrier, subject to a lien for freight and demurrage charges. The delivery to the common carrier for shipment was without any qualification or restriction, and, under the authorities, the consignor parted with his title to the coal and to all control over it
In all the cases brought to our attention, the right of action, and the right to waive the tort, was in the owner or bailor only, or when the person who sought to be bound was wrongly or tortiously in possession of the property: Sergeant v. Emlen, 141 Pa. 580; Zell v. Dunkle, 156 Pa. 353. The suit in this case waives the tort and ratifies the act of conversion by claiming damages representing the. full value of the property, but under the admitted facts the plaintiff would at most be entitled to recover only what the defendant company actually received: Lee v. Gibbons, 14 S. & R. 105; Wagner v. Peterson, 83 Pa. 238. Under the undisputed evidence, the railroad company did not receive, by the amount of $126, their full claim of charges against the freight.
On both phases of the case, the court rightfully entered judgment for the defendant, which is now affirmed.