73 Pa. Super. 588 | Pa. Super. Ct. | 1920
Opinion by
This is an appeal by the defendants from an order of the learned court below making absolute a rule for judgment for want of a sufficient affidavit of defense.
The plaintiff is a common carrier engaged in the transportation of goods for hire, and the defendants were at the time of the transactions here involved engaged in the business of buying and selling coal. The statement filed by the plaintiff averred that the defendants, during the months of March, April and May, 1909, shipped several cars of coal from Kingston, Pennsylvania, to be delivered by the plaintiff to Bates & Company, the con
“We beg to state that our records show that we shipped these cars consigned to Bates & Co. in March, April and May. We would like very much to help you out, but unfortunately this coal was sold to Bates & Co. f. o. b. cars at mines and we cannot do anything to assist you in moving these cars. Should Bates & Co. refuse the cars at this date, we will still be compelled to refuse to move the cars, for we gave them every opportunity to refuse the coal, which they did not do,
“Yours very truly,
“Whitney & Kemmerer.”
On the following day, July 7th, Bates & Co. informed plaintiff’s agent at Newark, N. J., that they did not at that time refuse the several cars, including the car in question, held for delivery to them at that point, which "had been shipped by defendants, and that they intended to accept such cars and pay the charges on them as fast as possible. During July,' August, September, October and November, 1909, Bates & Co. unloaded and paid the. freight and other charges on all of said cars of coal consigned to them by the defendants, except the car in question. On November 20, 1909, Bates & Co. gave to the
The affidavit of defense admitted that the car of coal had been shipped to Bates & Co., but averred that the defendants had contracted to sell to Bates & Co. certain carloads of coal to be delivered free on board cars at mines; that defendants, not then owning the coal, placed an order with the Kingston Coal Co. to so ship and deliver the cars of coal sold by the defendants to Bates & Co., charging the price thereof to these defendants, and said car was so shipped; that defendants have no copies of the bill of lading issued upon said shipment and therefore, while as matter of fact the car was shipped on the order and for the account of the defendants, yet they are unable to say whether as between the plaintiff and these defendants they were the shippers of said coal so as to raise an implied contract as between them and the plaintiff to pay the freight or charges thereon. This cannot be held to be a sufficient denial of the explicit averment of the statement that the defendants were the shippers of the coal. The most that can be said for this allegation of the affidavit of defense is that the defendants did not know whether they had been in the bill of lading named as the consignors. It admits that the defendants had ordered the coal company to make the shipment, which would confer upon that company authority to name the defendant as consignors. Even if the coal company had made the shipment in its own name, it was the agent of the defendants and the latter were undisclosed consignors. The defendants must be held to whatever liability attached to the shippers of the coal.
The appellants contend, however, that even if liable for the freight they cannot be held liable for the amount of the charges for demurrage, as such a charge implies inattention, negligence, or a retention for personal use, upon the part of the consignee. The shipment in this case involved interstate commerce and is controlled by the provisions of the legislation by Congress upon that subject. The Hepburn Act (34 Statute 584, c. 3591), enlarged the definition of the term “transportation,” so as to include “All services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration, or icing, storage, and hauling of property transported; and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto.” The effect of this legislation was commented upon in C., C., C. & St. L. Ry. Co. v. Dettlebach, 239 U. S. 588: “From this and other provisions of the' Hepburn Act it is evident that Congress
The allegation of the affidavit of defense that the plaintiff failed to give the defendants notice of the sale of the coal, on December 20, 1909, as required by the law of New Jersey, cannot avail to prevent the entry of judgment in this case. The defendants, by their letter of July 6, 1909, notified the plaintiff that they , would have nothing further to do with the coal, and in their affidavit of defense disclaim ownership of the coal. It may be assumed that if the coal had been sold at a higher price than that obtained by the plaintiff, the defendants would have been thereby benefited, for the proceeds of the sale were to be credited upon the claim for freight and demurrage. But we cannot assume that notice to the defendants would have resulted in the sale of the coal at a higher price. There is no allegation in the affidavit of defense that the coal was not sold for the best price obtainable. If a better price ought to have been obtained, then the defendants should have stated in their affidavit of defense what would have been a fair price for the coal.
The judgment is affirmed.