88 Pa. 264 | Pa. | 1879
delivered the opinion of the court, January 20th 1879.
The plaintiff’s claim, as appears by the bill of particulars, was based on the unauthorized delivery of the goods consigned to the defendant Wireman. Hence, the main question was, whether the latter had a right to receive them at the time they were delivered to him by the plaintiff’s agent. To show that he had not, the plaintiff mainly relied on the qualification and direction contained in its way-bill, to “ deliver only on the order of H. C. Spaulding & Son, of Elmira.” Resting upon this alone, the delivery to Wireman, without the order of Spaulding & Son, wmuld have been unauthorized; but the testimony adduced by the defendant tended strongly to prove that Fisler had purchased the goods from Spaulding & Son, to be delivered at Elmira, consigned to Wireman, and to be paid for in the negotiable paper of the consignee, endorsed by Fisler; that, pursuant to agreement, the goods were delivered at Elmira to the Lehigh Valley Railroad Company, whose receipt, for their delivery to Wireman at Philadelphia, without any qualification or restriction, was taken by Spaulding & Son, and immediately sent by them to Fisler in a letter, advising him of the shipment and enclosing draft for the amount to be accepted by Wireman, endorsed by Fisler and remitted to the consignors; and that on the arrival of the goods in Philadelphia, Wireman, who had agreed to purchase them from
The testimony fairly justified the inference that after Spaulding & Son had taken the receipt of the Lehigh Yalley Railroad Company, and mailed it to Fisler, they doubted the solvency of Wire-man and Fisler, and induced the company to restrict the delivery to the consignee, by adding to the bill of lading the words above quoted, and when the goods were transferred to the plaintiff company, at Allentown Junction, the same direction was inserted in its way-bill. But neither Fisler nor Wireman was a party to this change in the terms of shipment, and were not bound by it. If the goods Were purchased and delivered at Elmira, as contended by the defendant, the title had passed from Spaulding & Son and vested in the purchaser. After an unqualified delivery to the carrier at Elmira they were no longer at the risk or under the control of Spaulding & Son, and they had no right to say that, on reaching their destination, they should not be delivered to the consignee without their order. If the plaintiff company had refused to deliver the goods on presentation of the receipt and tender of the freight by the consignee, he could have sustained replevin by proving the facts which the jury must have found under the instructions of the court in this case.
There may be apparent hardship in the failure of the plaintiff to recover, after having been sued by the consignors, in the state of New York, for misdelivery of the goods, and compelled to pay the value thereof; but with this we have nothing to do. It may be that the right of the consignee to receive the goods, was not urged or sustained in that case as it was in this. In the present case, as we have seen, the action was based exclusively on the ground that the consignee had no right to receive the goods without the order of the consignors, a position which the plaintiff failed to maintain. Perhaps the result might have been different if the action had been in the name of the consignors to the use of the railroad company. As it was, however, the case hinged on the question of Wireman’s authority to receive the goods. The facts were for the jury, and the testimony, submitted to them with appropriate instructions, fully justified the verdict.
Judgment affirmed.
