6 Binn. 129 | Pa. | 1813
Upon the special verdict in this case, it appears that Lamberton the plaintiff below, having a barrel containing twelve castor hats in Philadelphia, which he wished to be conveyed to Carlisle, the place of his residence, agreed with John Semple a common carrier for the carriage of them. Semple without the knowledge of Lamberton, contracted with another carrier of the name of John Chambers for the carriage. Chambers, having received the barrel from the house of Benjamin Scull in Philadelphia, where it was deposited, delivered it to Robert Sanderson, who was also a common carrier, and engaged that on its safe delivery in Carlisle, the plaintiff should pay to the said Sanderson the sum of two dollars. This also was without the knowledge of the plaintiff. The barrel was lost by the negligence of Sanderson; and the only question is, whether this action can be supported by the plaintiff. That the estate of Sanderson must be answerable for the value of the hats, there is no doubt, because he undertook to . .carry them and he lost them. If Lamberton had purchased the goods in Philadel
gave no opinion, having been prevented from sitting at the argument.
An action of trover and conversion could no doubt be supported by Lamberton against Sander-son, for the general or absolute property was in Lamberton, and a special only or qualified property in Sanderson; and the not delivering to Lamberton, for whose use he had received the property, but retaining, must be construed a turning to his own use. It is the same thing in legal contemplation, as if he had found the property of Lamberton on the highway, and refused, to deliver. The only difficulty is that of a technical subtlety, the declaring in assumpsit. An express promise is alleged as made by Semple in the first instance, and this is in the way of an implied promise by Sanderson to deliver; expressum cessare facit taciturn. This is not a place for the application of the maxim. It is an original undertaking by Sanderson, at the instance of Semple, to deliver to Lamberton. Semple may be considered as acting as the agent of Lamberton in making this agreement, and contracting with Sanderson. Suppose
Judgment affirmed.