274 Pa. 384 | Pa. | 1922
Opínion by
Plaintiffs issued a foreign attachment under which the sheriff seized several carloads of goods, being transported by the Pennsylvania Bailroad Company under a negotiable bill of lading which was in the possession of the Fourth Street National Bank. The railroad and the bank were both served with copies of the attachment, and
The railroad company entered a rule to show cause why the attachment should not be quashed, because plaintiffs had not complied with section 24 of the Bills of Lading Act of June 9,1911, P. L. 838; the court made the rule absolute and quashed the attachment. The bank entered a rule upon plaintiffs to show cause of action and why the attachment should not be dissolved; an affidavit was filed which was held inadequate; this rule also was made absolute and the attachment dissolved.' Plaintiffs thereupon appealed, assigning these rulings as error. The affirmance of either of them would necessarily end the present controversy; but, at the request of counsel, we will consider both points, to the end that there may be established a precedent for the guidance of other parties in similar proceedings.
The Uniform Bills of Lading Act of June 9,1911, P. L. 838, provides as follows:
“Sect. 24. If goods are delivered to a carrier by the owner......and a negotiable bill is issued for them, they cannot thereafter, while in the possession of the carrier, be attached by garnishment or otherwise, or be levied upon under an execution, unless the bill be first surrendered to the carrier or its negotiation enjoined. The carrier shall in no such case be compelled to deliver the actual possession of the goods until the bill is surrendered to him or impounded by the court.
“Sect. 25. A creditor whose debtor is the owner of a negotiable bill shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such bill or in satisfying the claim by means thereof, as is allowed at law or in equity in regard to property which cannot readily be attached or levied upon by ordinary legal process.”
It is admitted that the bill of lading was not surrendered to the railroad company, and that no injunction was applied for; but plaintiffs claim that by serving
It was admitted at bar that if a negotiable promissory-note was attached, the creditor would have to serve the process upon the payee, as the real debtor, and by proceedings in equity enjoin its further negotiation. This well known if not universal method, is the basis of the statutory proceeding for attaching negotiable bills of lading; with the further necessity, in this latter case, for protecting the carrier, who is an additional party in interest. If the foregoing sections of the statute are properly construed they successfully accomplish their in
In the present instance, if plaintiffs had followed the clear provisions of the statute, instead of trying to find a substitute for them, a bill in equity would have been filed against the bank as holder of the bill of lading, the defendant as the alleged owner of it, the consignee of the goods as the one entitled to receive them on payment of the bill and its receipt and surrender to the railroad, and the latter as the party in possession of the goods, required to deliver them on surrender of the bill. To the legal mind it is evident that the rights of all these parties may be easily protected through the flexible machinery of a court of equity; it is certain they cannot be unless in substance this course is pursued.
It is said, however, that if a bill in equity is filed, the court, having obtained jurisdiction of the parties and
It is further urged by plaintiffs,, however, that, if the railroad’s construction be correct, viz, that the bill must be “first surrendered to the carrier or its negotiation [first] enjoined,” by the time notice is given and an injunction obtained, the goods will be beyond the jurisdiction of the court. Without definitely deciding the point, since the only question raised on this record is whether or not an injunction is required at some stage of the proceedings, and not overlooking the fact that, if the true construction requires an injunction to be obtained, the matter is one for the legislature and not’ for us, we may nevertheless point out that there is but one “first” in the printed clause; and hence it may possibly be satisfied by an injunction after attachment of the goods, provided it is promptly applied for and obtained (as specified in the next sentence) before the carrier is “compelled to deliver the actual possession of the goods,” when either
It is clear, therefore, the attachment was properly dissolved on the application of the railroad.
Upon the rule to show cause of action, the affidavit alleged that1 plaintiffs and defendant entered into a contract for the purchase and sale of certain goods “f. o. b. cars Albany, Georgia”; that at plaintiffs’ request they were shipped in three separate parcels, one to Washington, D. 0., one to' Philadelphia, Penna., and one t’o Montreal, Canada; that the contract price was paid, but on the arrival of the goods they were found defective in quality; and plaintiffs claimed to recover the difference between the value of the goods as contracted for and as in their actual condition, at said points of destination. The affidavit did not state anything regarding t’heir value at Albany, Georgia. The measure of damages thus claimed is, of course, an improper one; sect. 69, of the Uniform Sales Act of May 19, 1915, P. L. 543, 562, expressly provides that “such loss, in the absence of special circumstances showing proximate damage of a greater amount, [none being averred here] is the difference between the value of the goods at the time of delivery to the buyer [here f. o. b. cars, Albany, Georgia] and the value they would have had if they had answered to the warranty.” If appellants’ contention on this point1 is correct, then they could have directed shipment to Petrograd, or some other demoralized or inaccessible place, and charged the seller accordingly; and so appellants counsel, with some hesitancy, admitted.
Plaintiffs contend, however, that in Sloan Corporation v. Linton, 260 Pa. 569, we held the market price at the place of destination of the goods was the determinative factor. This, however, is not correct. In that case it appeared that all over the country the market price, of the kind of goods there shipped, was determined by deducting, from the market price in New York, the cost of transportation to that city. Plaintiff proved what the
Appellants finally urge that the entry of an appearance for the garnishee prevents the raising of this question. This also is incorrect. In Schober v. Mather, 49 Pa. 21, relied upon to sustain this contention, the garnishee entered an appearance and then moved to quash the writ, because it was made returnable at the wrong return day. Being in court by his general appearance he could not object to the return day of the process which brought him there, it being a matter of indifference how he got there. But this did not affect his right, and does not here, to take any proceedings which one in court could properly take. Nor is the decision of our Brother Walling (when in the court of common pleas), in the case of Black v. Brown, 15 Pa. District Reports 192, of any help to appellants. There defendant entered an appearance and it was properly held that, by the express language of the statute, the case should proceed as in actions commenced by summons, and for that reason the writ could not be quashed: Bergman v. Straus, 264 Pa. 439.
We conclude, therefore, that the attachment was properly dissolved, since the affidavit did not set forth a cause
The orders of the court below are affirmed.