Weisman v. Philadelphia, Wilmington, & Baltimore R. R.

Per Curiam. (1) The case shows that the goods for the wrongful delivery of which, as alleged, this suit is brought, though directed to the plaintiff himself, were delivered at the place directed and to the person to whom the plaintiff intended that the delivery should be made, in precisely the same way that previous shipments by the plaintiff had been delivered. The complaint of the plaintiff is not that the goods were not delivered to the proper person at the proper place, but rather that they were delivered prematurely, his intention being that they should not be delivered until the price had been paid. He did not, however, notify the defendant of his intention to have the price paid before delivery, and when he shipped the goods he did not have the word ‘ ‘ order ” inserted before or following his initials as consignee in the bill of lading; so that according to the terms of the bill of lading it was optional with the defendant to require its production before the delivery of the goods or to deliver them without its production. The loss which the plaintiff has suffered by his inability to collect the value of the goods from the person to whom they were delivered is due, therefore, to the failure of the plaintiff either to notify the defendant not to deliver the goods until the price had been paid or to have the bill of lading so made as to require its production as the condition of receiving the goods. We do not see that the defendant lias failed either in the delivery of the goods according to the intent of the contract or in its duty to the plaintiff. It is a well-established principle that when one of two innocent persons must suffer loss, he shall bear it whose act or fault has occasioned the loss. Our opinion is, therefore, that the plaintiff’s petition for a new trial should be denied and dismissed and the case remitted to the Common Pleas Division with direction to enter judgment on the verdict.