Pennsylvania Co. v. Bonchek & Gordon

15 Ohio App. 1 | Ohio Ct. App. | 1921

Dunlap, P. J.

The municipal court erred in this case in granting the motion for a judgment upon the pleadings in favor of the plaintiff. Defendant pleaded that the consignor had notified the defendant that the consignee was insolvent and unable to meet its obligations; that consignor exercising its right of stoppage in transitu had demanded possession of the consignment; that in pursuance of that demand the defendant delivered the goods to the shipper; also that the shipper took actual possession of the goods and that by reason of that fact the carrier was prevented from transporting said goods in accordance with the original shipping orders.

We have to say that the right of stoppage m transitu is now controlled entirely by statutes of the state of Ohio. Section 8439, G-eneral Code, provides :

“ (1.) The unpaid seller may exercise his right of stoppage in trcmsitu either by obtaining actual possession of the goods, or by giving notice of his claim to the carrier or other bailee in whose possession the goods are.”

Then in paragraph two of the same section the duty of the railroad company under such circumstances is specifically stated as follows:

“(2.) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee in possession of the goods, he [the carrier] must redeliver the goods to, or according to the directions of the seller. # * # If, however, a negotiable

document of title representing the goods has been issued by the carrier or other bailee, he shall not be obliged to deliver or justified in delivering the goods to the seller unless such document is first surrendered for cancellation.”

It is conceded in the case at bar that no negotiable document of title had been issued, therefore its surrender was not required. Whatever the common-law doctrine may have been — and we do not attempt to determine what it was — the carrier is not now required to set up and prove the insolvency of the consignee. It is sufficient for it to plead the fact of the stoppage and the obtaining of the goods by the consignor in a method provided by the statute, and we think that the amended statement of defense filed by the carrier in this case in the court below sufficiently set up the defense of stoppage in transitu by the consignor of the goods; and, inasmuch as said defense was properly set up, the defendant had a right to have its defense tried out and determined by the court. For error in granting the plaintiff below a judgment upon the pleadings, this judgment will be reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Washburn and Vickery, JJ., concur.