228 Pa. 641 | Pa. | 1910
Opinion by
The question here involved is the liability of defendant company for the value of seventeen car loads of grain and feed, delivered by the agent of the defendant, to the consignee, without requiring the surrender of the bills of lading. As a general principle, if the carrier delivers to anyone, even to the consignee, without requiring the production of the bill of lading, it does so at its peril. But there may be cases in which, by custom or a course of dealing between consignor and consignee, delivery has, with the knowledge and acquiescence of the consignor, been permitted without the surrender of the bill of lading. In such a case, the carrier, in the absence of notice that the bill of lading is being held as security for the purchase price of the goods, may be justified in making delivery without requiring the surrender of the bill of lading. See 1 Hutchinson on Carriers, sec. 177, where the author cites National Bank v. P. & R. R. R. Co., 163 Pa. 467. In the present case, the course of dealing between the plaintiffs and their consignee, Duke Copelin, extended over a period from June, 1905, to June, 1907, and during that time they sold him some fifty-one car loads of merchandise. There is evidence to show that all, or nearly all of these cars were delivered to the consignee without obtaining the surrender of the bills of lading. For some thirty-four of the cars, payment was made after delays varying from 15 days to 251 days. For the value of the contents of the remaining seventeen car’s, for which no payment has been made by the carrier, the plaintiffs here seek to recover from the defendant. No complaint seems to have been made to the defendant company until June, 1907, although Copelin was then indebted to plaintiffs for cars delivered in October previous. The letters of plaintiffs to Copelin, which were in evidence, not only show that they knew of the practice under which Copelin was permitted to take the cars without surrendering the bills of lading, but that they were satisfied with it, providing Copelin made pay-'
The theory upon which the trial judge submitted this case to the jury is not very clear. Apparently the sole question he submitted to the jury was as to plaintiffs’ knowledge of the acts of the defendant’s agent in delivering the cars to the consignee, without requiring the surrender of the bills of lading, and he instructed them that if the plaintiffs knew that fact, and failed to report it until June, 1907, the verdict should be for the defendant. Under the evidence which was submitted, the letters and the oral testimony of Morey, one of the plaintiffs, there is no room to doubt the fact of plaintiffs’ absolute knowledge of the deliveries of the cars without the surrender of the bills of lading, and their acquiescence therein. Morey testified that he knew the drafts attached to the bills of lading remained unpaid, and that he knew, or presumed, the grain had been delivered to Copelin. No other inference could be drawn from his testimony, and from the letters he wrote, to Copelin. Even upon the theory held by the trial court, it would seem that binding instructions should have been given in favor of defendant as to the fact of knowledge and acquiescence by plaintiffs.
The ruling of the court below as to the failure to make claim for the loss within thirty days of the alleged wrongful delivery was in accordance with the authorities. In 4 Elliott on Railroads (2d ed., 1907), sec. 1512, it is said: “A valid contract may be made requiring claim for loss or damages to freight to be presented in a certain manner or within a certain time, provided it is reasonable. . . - Such a stipulation is not available to a common carrier in case of conversion of the goods by the carrier.” In Chicago, etc., Ry. Co. v. Bank, 26 Ind. App. 600, the precise question arose. The carrier had delivered freight to the wrong person and the consignee brought suit for damages. Notice of the claim had not been given within thirty days after the arrival of the goods at the point of delivery, and defense was made on that ground. Wiley, J.,
Counsel for appellant have attempted to question the ruling of the court below, as to the necessity of an affidavit of defense in this case. That question cannot however be properly raised on this appeal. If appellant had not filed an affidavit within the fifteen days allowed by the order of court, and had permitted judgment to be entered against it for want of an affidavit of defense,
The first, second, third, fourth, fifth, eighth, thirteenth, fourteenth and fifteenth assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.