182 Pa. Super. 65 | Pa. Super. Ct. | 1956
Opinion by
This is an action of assumpsit in which the jury rendered a verdict for defendants. The court below re
Plaintiff, The Pennsylvania Railroad Company, brought this action against Albert Brownstein and Bernard Brownstein, and Girard Sales, Inc., to recover the value of six refrigerators alleged to have been misdelivered to them.
In considering the court’s refusal of plaintiff’s motion for judgment n.o.v., it is necessary that we view the record in the light most favorable to defendants, resolving all conflicts therein in their favor, and giving them the benefit of every reasonable inference of fact arising from the evidence. Stoner v. Penn-Brixite, Inc., 177 Pa. Superior Ct. 189, 191, 110 A. 2d 904. In so doing we find that the evidence indicates the following facts: In August, 1948, defendants ordered seven refrigerators from the United Sales and Equipment Company, Wichita, Kansas. The order was given by telephone to Granville O’Neal, a representative of the seller. There had been previous dealings between the two firms through O’Neal. On this occasion it. was agreed that defendants would remit the purchase price of the refrigerators to a bank in Wichita through the Philadelphia National Bank, and that the same was to be paid to the seller upon presentation of a bill of lading, together with an invoice, showing that the goods had been shipped. A letter of confirmation was received by defendants and the purchase price was forwarded and paid to the seller in Wichita. Thereafter
It is not clear from the record who had possession óf the bill of lading for the sixteen refrigerators at the time of delivery of the six refrigerators to defendants. Defendants were unaware of its existence. There is no doubt that they had ordered at least six of the type which were delivered to them, and that the purchase price for seven items was paid to the company shipping the goods.
Plaintiff attempted to prove that the delivery was made to defendants from the shipment of sixteen refrigerators, and that they were not entitled to posses-;
In the instant proceeding plaintiff based its cause of action upon the common law and the Act of June 8, 1881, P. L. 86, §1, 6 PS §3, which provides in part as follows: “Any carrier or other bailee of property, who has parted with its possession by mistake to any person not entitled to the possession, may, after demand, maintain ... if the property cannot be found, an action of assumpsit. . . against the party converting or removing it.” There may be some doubt that this Pennsylvania statute is applicable as the goods were not shipped from this state or delivered therein. However, this is probably immaterial as the Act expresses the general rule (see 13 C.J.S., Carriers, §173), and it is essentially the same as the rule in the state of New York, the situs of the delivery. See Pennsylvania Railroad v. Tozzi, 124 Misc. 310, 207 N.Y.S. 16, 18; New York Central Railroad Company v. Muszalski, 252 App. Div. 251, 299 N.Y.S. 45, 46.
In order for plaintiff to prevail, it was necessary that the jury conclude that defendants were not entitled to possession at the time of delivery. In this respect it is contended that a superior right to possession was shown by the evidence to have been in a third party; and that the bill of lading, upon presentation of which delivery was made, was forged and therefore gave no possessory interest to defendants. At the trial plaintiff introduced the depositions of one George Harpool which were to the effect that Harpool Bros., Wichita, Kansas, were the owners of the goods at the time of shipment. But the witness did not establish the basis for such ownership except to say that at the time of the hearing he had the original bill of lading
Concerning the alleged forgery, plaintiff offered in evidence, over objection, the record of O’Neal’s plea of guilty in the United States District Court for the District of Kansas to indictments charging forgery and uttering a forged bill of lading. This record was offered to establish that O’Neal “admits he forged this document.” Assuming this record had the same effect that testimony by O’Neal would have had, it nevertheless was entitled only to be weighed with the other evidence, and the jury could give it such consideration as the circumstances warranted.
Plaintiff also introduced in evidence, over objection, a technical admission by defendants under Pa. R.. C. P. No. 4014 that the bill of lading was forged. This admission is not necessarily conclusive of the issue of whether or not defendants were entitled to possession of the goods at the time of delivery. Other circumstances which were present indicate that such issue cannot be determined inevitably on a single facet of the case. Although the admission was entitled to consideration by the jury (cf. Dougherty v. Pennypack Woods Home Ownership Association, 181 Pa. Superior Ct. 121, 128, 124 A. 2d 703), there was other evidence relevant to the issue of possession which would support the verdict. See Trostel v. Reading Steel Products Corporation, 152 Pa. Superior Ct. 273, 278, 279, 31 A. 2d 909; Ondo v. Greek Catholic Union, 155 Pa. Superior Ct. 492, 499, 500, 38 A. 2d 370. The evidence presented by defendants showed that the bill of lading was obtained in the normal channels of trade from the United Sales and Equipment Company, the shipper, the seller, and the recipient of the purchase price paid by defendants. O’Neal was the authorized representative of the
It appears, for these reasons, that the jury could believe that defendants had ordered seven refrigerators and made payment therefor to the company which shipped sixteen by mistake or as the result of the manipulations of O’Neal, the shipper’s agent. It was also reasonable for the jury to find that defendants acted in good faith; that no other innocent party intervened who might have a superior claim to the goods; that the delivery made by plaintiff was intentional and in accordance with the purpose of the shipper. We think that, under the circumstances, judgment n.o.v. was properly refused. The ease of Long Island Railroad Company v. Structural Concrete Company, 59 Misc. 167, 110 N.Y.S. 379, 380, is similar on its facts to the
Although we conclude on the record before us that judgment n.o.v. was properly refused, we are of the opinion that a new trial should have been granted because of certain errors in the charge of the trial judge. As a whole, the charge must have been confusing to the jury in many respects. The essential factual issue concerned the right to possession of the goods, and this involved several subsidiary issues. From an examination of the charge, however, it appears that these issues were obscured by the submission of a number of irrelevant matters which tended to detract from the determinative issues. For instance, the judge submitted to the jury the question of the delay or laches of plaintiff in notifying defendants of the alleged misdelivery. Apparently the intention of the trial judge was to have the jury determine whether defendants were harmed as a result of the delay. As this is an action of assumpsit it is governed by the statute of limitations and not by the equitable doctrine of laches. The defense of laches, moreover, was not pleaded by defendants. See Pa. R. C. P. Nos. 1030, 1032; Lang v. Recht, 171 Pa. Superior Ct. 605, 608, 91 A. 2d 313; Martin v. Wilson, 371 Pa. 529, 533, 92 A. 2d 193. If it could be said that the failure of defendants to plead laches was cured by plaintiffs producing evidence of a delay in its own case (see Nevling v. Commercial Credit Company, 156 Pa. Superior Ct. 31, 36, 37, 39 A. 2d 266), there is nothing to indicate that the delay was unreasonable or in what manner defendants may have been prejudiced thereby. Lehner v. Montgomery, 180 Pa. Superior Ct. 493, 501, 502, 119 A. 2d 626. There was no proof that defendants could have reduced any damage that might have been sustained if prompt notice had been given. Fur
Judgments in favor of defendants are reversed, with a veevre facias de novo.
The two defendants were trading as Girard Sales Company-at the time the misdelivery is alleged to have been made. When action was instituted by plaintiff the partnership' had apparently been dissolved and Girard Sales, Inc., was then in existence.- Plaintiff accepted a nonsuit as to the corporation in the absence .of proof, that it had assumed the liabilities of the partnership.
Counsel for plaintiff stated on the record: “I have to prove Harpool Bros, owned the refrigerators, and in order to prove he owned these refrigerators, I have to show the numbers.”