Braddock Glass Co. v. Irwin & Co.

Opinion by Mr. Justice Stebbett, Defendants’ contention was that the goods, for the price of which this suit was brought, were to be delivered to them by the plaintiff company at the Forty-third Street station of the Junction Railroad Company in Pittsburgh. The evidence tended to prove that such was the contract between the parties. No delivery at that point was shown. On the contrary, it appeared that neither the plaintiff nor the railroad company delivered or offered to deliver them there when defendants were [443] entitled to receive them. In view of the evidence, from which the jury would have had no difficulty in finding those facts, or at least would have been warranted in finding them, defendants requested the court to charge : “ First. That, if the jury find from the evidence that the contract between the parties was that the plaintiff should deliver the soda-ash at Forty-third street, Pittsburgh, then, under the evidence in this case, there can be no recovery.” The learned judge’s answer was : “ This point is refused. I decline to say that there could be no recovery in this case if you find that the contract called for a delivery at Forty-third street. In such ease it would, in my opinion, be your duty still to inquire, from all the evidence, whether or not the plaintiff had made a delivery of the goods at that point, and that the goods were there awaiting removal by the defendants, or were negligently detained by the railroad company at the place of delivery.” There was no evidence that “ plaintiff had made a delivery of the goods at that point,” or “ that the goods were there awaiting removal by the defendants,” at least not at the time they should have been delivered there. It was therefore error to submit to the jury these inquiries, of which there was no sufficient evidence. Still more was it error to permit them, in the circumstances, to inquire whether the goods “ were negligently detained by the railroad company at the place of delivery.” This instruction ignores the recognized principle that where goods are to be carried by the vendor to a certain place and there delivered to the vendee, the carrier is the agent of the former and not of the latter; and that the vendor is responsible for the negligence or misconduct of his agent: McNeal v. Braun, 53 N. J. Law, 617; Sneathen v. Grubbs, 88 Pa. 147; Scott v. Wells, 6 W. & S. 357; Benj. on Sales (1883), § 1040. In the latter, the learned author, after referring to the general principle, that, where the vendor is bound to send the goods to the purchaser, delivery to a common carrier is a delivery to the purchaser, etc., proceeds to say: “ If, however, the vendor should sell goods, undertaking to make the delivery himself at a distant place, thus assuming the risks of the carriage, the carrier is the vendor’s agent: ” 6 Cl. & Fin, 600. In McNeal v. Braun, supra, the plaintiff, a coal dealer, con [444] tracted with defendant to sell and deliver to him at Burlington a lot of coal at $4.10 per ton delivered. The coal was selected by plaintiff from his stock, loaded in a barge selected by him, and, reaching Burlington safely, was moored alongside defendant’s wharf for the purpose of unloading, just before usual quitting-time in the evening. During that night the barge sank, and the coal was lost. In an action to recover the contract price of the coal it was held that, when vendor contracts to deliver goods to vendee at a particular place, the carrier selected by vendor is his agent to perform the contract to deliver; and the vessel in which the goods are carried is pro hac vice the vendor’s vessel, and he must bear the responsibility for the carrier’s negligence, and for the condition of the vessel. Substantially the same principle is recognized in Sneathen v. Grubbs, supra. In view of what has been said, we think the learned judge erred in refusing to affirm defendants’ first point. The first specification, is therefore sustained. Substantially the same error pervades those portions of the charge recited in the third and fourth specifications respectively. In each of these, the consequences of the railroad company’s delay or negligence in not delivering the goods when they should have been delivered, etc., are charged to defendants instead of to the plaintiff, whose agent the railroad company was in the circumstances contended for by defendants. We are not satisfied there was an'y error in refusing defendants’ second point as presented. Spencer v. Hale, 30 Vt. 314, cited and relied on by plaintiff, is not in point. The goods were sold delivered on defendants’ cars at point of shipment. Sale and delivery were perfected at that point. The same remark is also applicable to Glen v. Whitaker, 51 Barb. 451, and Bradford v. Marbury, 12 Ala. 520, cited by him. Judgment reversed, and a venire facias de novo awarded.