DeWitt Wire Cloth Co. v. Griffith

Opinion by Rice, P. J., This is an appeal from judgment for defendants on demurrer. The action was assumpsit for the price of goods which, by the defendants’ written orders, accepted by the plaintiff, were to be shipped to one John O’Donnell, who was the defendants’ salesman and agent at Atlantic City, New Jersey, via the Reading Railroad. The specific reasons assigned in support of the demurrer were, (1) that the statement did not allege a sufficient delivery of the goods, (2) that it was not properly verified. The second reason is not noticed in the appellees’ brief and is not good. The plaintiff being a foreign corporation duly registered and authorized to do business in Pennsylvania, and having its Pennsylvania store and salesroom in Philadelphia, verification of the statement by the affidavit of the manager of its Philadelphia store, through which the sale was made, who was entirely familiar with the transaction, was sufficient: Erie Boot & Shoe Co. v. Eichenlaub, 127 Pa. 164. The facts relative to delivery, as averred in the statement of claim, are substantially as follows: The goods were shipped via the Pennsylvania Railroad to O’Donnell at Atlantic City, where they arrived on March 28, 1908, of which fact the defendants, through their agent O’Donnell, the consignee, then and there had notice, On or about March 30, O’Donnell called at the plaintiff’s place of business in Philadelphia, stated that he had notice of the arrival of the goods, and requested the plaintiff to procure for the defendants a bill of lading signed by the agent of the railroad company, so that by indorsing and delivering it to the defendants’ customer for whom the goods had been ordered the customer would be able to [277] get the goods at the railroad depot. In accordance with this request the plaintiff procured the bill of lading and, on April 2, 1908, delivered it to the defendants, who shortly thereafter turned it over to their customer, the Chelsea Hardware Company, of Atlantic City, directed them to get the goods at the railroad depot, and thereupon sent them the defendants’ bill for the price of the goods. The statement further averred that on March 25, 1908, an invoice or bill for the larger part of the goods, and on April 6, 1908, an invoice for the balance, were sent by the plaintiff to the defendants, and that the latter “then and there admitted the receipt of the goods delivered as aforesaid and made no objection to the plaintiff’s bill therefor.” The effect of the latter averment is not discussed in the paper-books, but even if it be disregarded we think the other facts alleged were sufficient to establish an acceptance of the goods, notwithstanding they were not shipped by the railroad designated in the defendants’ orders. It is not pretended that the delivery to a carrier other than that named in the orders was a performance by the plaintiff of its part of the contract, or that the defendants were under obligation to accept the goods when they arrived at the depot of the carrier in Atlantic City. The risk of transportation was upon the plaintiff, and the defendants, if they had chosen to stand on their legal rights, might have awaited actual physical delivery of the goods, either at the depot of the railroad designated in the orders, or, perhaps, ■ at their place of business, before accepting them. However, they did not choose to stand upon the letter of the contract, but by unequivocal acts and declarations showed their intention to waive the irregularity arising out of transportation by another railroad than that designated in their orders and to accept symbolical delivery. Not only so, but their use, with the plaintiff’s assent, of the bill of lading to complete a sale they had made to a third person and to transfer to that person the control and ownership of the goods, was entirely inconsistent with the supposition that either party [278] to the suit thereafter regarded the ownership of the goods as being in the plaintiff. The actual receipt of the bill of lading or other document of title to goods may be equivalent to that of the goods themselves: Burdick on Sales, 75, citing Currie v. Anderson, 2 E. & E. 592; and if the circumstances under which it was delivered, accepted and used show that such was the intention of the parties, it is the equivalent. The principle is thus stated in 1 Benjamin on Sales (6th Am. ed.), sec. 148: “A dealing with goods so as to justify a jury in finding a constructive acceptance may take place as effectively with the bill of lading which represents the goods as with the goods themselves.” .This statement of the principle is supported by reason and authority. Applying it here it sustains the averment of the statement of claim “that the defendants, by virtue of the facts aforesaid, accepted the goods so delivered by the plaintiff.” The judgment is reversed and judgment is entered in favor of the plaintiff for $430.20, with interest on said sum from May 6, 1908, and costs.