King v. Richards

• Decision Date: 24 April 1841
• Parties: KING and Another v. RICHARDS and Another.
• Court: Pennsylvania Supreme Court

6 Whart. 418

37 Am.Dec. 420

KING and Another v. RICHARDS and Another.

Supreme Court of Pennsylvania.

April 24, 1841

IN ERROR.

The defendants were common carriers of goods between New York and Philadelphia, and had signed a receipt for certain goods as received of A., which they promised to deliver to his order. In trover by the indorsees of this paper, who had made advances on the goods, it was held, that the defendants might prove that A. had no title to the goods that they had been fraudulently obtained by him from the true owner; and that upon demand made, they had delivered them up to the latter.

ERROR to the District Court for the City and County of Philadelphia.

This was an action of trover in the court below, brought by Benjamin W. Richards and Joseph Bispham, trading under the firm of Richards & Bispham, against Charles King and Francis King, trading as C. & F. King, to recover the value of 100 bags of coffee.

The defendants pleaded the general issue; upon which the cause came on for trial before STROUD, J., on the 10th of April 1839, when the plaintiffs called one George B. Jones, who testified as follows:

" I am in the employ of Richards & Bispham; was so in 1836; this is the signature of L. Clapier Heyl and Company. [Bill of lading exhibited to witness.] I called with this bill of lading on the defendants, on the 22d or 23d of November, 1836, for the production of the coffee. I saw one of the Messrs. King--Mr. F. King, I think; he said that 80 bags of the coffee had been taken away; I tendered the freight, if not at that time, a day or two afterwards; no portion of the coffee was delivered; the average weight of Cuba coffee of this description is 160 lbs., price 12 1/2 cents."

Cross-examined.--" The advance was $1744 in a note, at 60 or 90 days."

Examined in chief.--" The advance was made 21st November, 1836 [notes produced; ] these are the notes; this is the bill of lading; [bill of lading produced; ] Mr. Walsh was the partner who endorsed it."

The bill of lading and the notes were then read.

The following is a copy of the bill of lading:

Marks &amp )

Numbers. )

" Steam Tow Boat Company:--Merchants' Transportation Line between New York and Philadelphia, via Delaware and Raritan Canal, for the conveyance of merchandise, specie, baggage, & c., and insurance effected whenever required on any package to its full amount of value."

" Marked )

Proprietors. )

R. )

Miller and Bancker, No. 16 Washington st., or No. 32 South Front st., New York. C. & F. King, 19 S. Wharves, Philada."

" Received from L. Clapier Heyl & Co., on board the tow-boat Orb, the following goods, viz. one hundred bags coffee marked and numbered as per margin, which we promise to forward [danger of navigation, fire, breakage, leakage and other unavoidable dangers and accidents excepted; and not holding ourselves responsible if lost, stolen or damaged beyond the value of two hundred dollars per package, unless insured by mutual agreement, and no damage allowed without being notified twelve hours after delivery] to order in Philadelphia, upon presenting this receipt at our office, No. 19 South Wharves, and paying freight therefor, 12 1/2 cents per 100 lbs.

For the proprietors A. H. HIGHAM."

" Contents and conditions unknown." Endorsed, " L. Clapier Heyl and Company."

" I tendered a check for $40 to cover freight; had no bill of freight; made no question about freight."

The counsel for the defendants then called one Daniel Curtis, Jr., and offered to prove by him, that the coffee mentioned in the receipt or bill of lading signed by the defendants, was the property of John B. Lasala, a merchant of New York, and was so at the time the receipt was signed: that before the defendants had any notice of the assignment of the bill of lading to the plaintiffs, the coffee had been claimed by the said John B. Lasala, as his property, alleging that the same had been fraudulently taken out of his possession, by the said L. Clapier Heyl & Co., and that the defendants had delivered the coffee to Lasala; and that defence in this suit was now taken by him. They further offered to prove by the same witness, that the coffee had been agreed to be sold by Lasala, to the said L. C. Heyl & Co., upon certain conditions being complied with; that the said conditions had not been complied with; that there had been no delivery of the coffee by the said Lasala to the said L. C. Heyl & Co., nor was possession of the coffee parted with by said Lasala; that the said L. C. Heyl & Co., fraudulently took possession of the same; that the whole transaction on the part of L. C. Heyl & Co. was fraudulent, and that by the use of ordinary diligence, the plaintiffs might have ascertained all these facts before they advanced money on or took an assignment of the bill of lading.

To which testimony, the plaintiffs' counsel objected; and the judge sustained the objection and rejected the testimony; to which the counsel for the defendants excepted.

The judge then instructed the jury, that the defendants could not dispute the plaintiffs' title; that it was like the case of landlord and tenant, or mortgagor and mortgagee; that it might be assumed that the sale by Lasala to Heyl & Co. was conditional, and the conditions not complied with; that there had been no delivery of possession of the coffee. This would make no difference; that in this suit such facts would have no operation; and that the jury must find for the plaintiffs.

The defendants' counsel excepted to this opinion; and the jury having found for the plaintiffs the value of the coffee, this writ of error was taken, and the following errors were assigned:

" 1. That the court below erred in rejecting the testimony of Daniel Curtis, a witness produced on the part of the defendants below, to prove the facts set forth in the bill of exceptions.

2. That the judge erred in instructing the jury that the defendants could not dispute the plaintiff's title; that it was like the case of landlord and tenant, or mortgagor and mortgagee; that it might be assumed that the sale by Lasala to Heyl & Co. was conditional, and the conditions not complied with; and that there had been no delivery of possession of the coffee; this would make no difference; that in this suit such facts would have no operation; and that the jury must find for the plaintiffs."

Mr. Davis and Mr. James S. Smith, for the plaintiffs in error, cited Story on Bailments, 371, § 582. Taylor v. Plumer, (3 Maule & Selw. 562.) Wilson v. Anderton, (1 Barn. & Ad. 450; 20 Eng. Com. Law Rep. 426.) Hart v. Allen, (2 Watts, 117.) Hand v. Baynes, (4 Wharton, 215.) Berkley v. Watling, (7 Ad. & Ellis, 29; 34 Eng. Com. Law Rep. 22.) Haddon v. Parry, (3 Taunt. 303.) Barrett v. Rogers, (7 Mass. 297.) Forrester v. Dodge, (12 Mass. 565.) Ogle v. Atkinson, (5 Taunt. 759; 1 Eng. Com. Law Rep. 255.) Abbott on Shipping, 381 et seq.; 2 Leigh's Nisi Prius, 483. Starkie's Evid. pt. IV., 308. Maryland Ins. Co. v. Ruden, (6 Cranch, 338.) Del. Ins. Co. v. Hogan, (3 Wash. C. C. Rep. 5.)

Mr. Meredith, for the defendants in error, cited 3 Esp. Rep. 114. Hawes v. Watson, (2 Barn. & Cres. 540; 9 Eng. Com. Law Rep. 170.) Miles v. Cattle, (6 Bingh. 743; 19 Eng. Com. Rep. 219.) Stonard v. Davis, (2 Camp. 343.) Dyer v. Pearson, (3 Barn. & Cres. 38; 10 Eng. Com. Law Rep. 13.) Copland v. Bousquet, (4 Wash. C. C. Rep. 596.) Parker v. Patrick, (5 Term Rep. 175.) Irving v. Motley, (7 Bingh. 543; 20 Eng. Com. Law Rep. 238.) Mackinley v. M'Gregor, (3 Wharton, 396.) Burnside v. Miskelly, (5 Watts, 506.) Haggerty v. Palmer, (6 Johns. Ch. Rep. 437.)

OPINION

KENNEDY J.

The only question raised in this case is, whether the defendants, the bailees of goods delivered to them as common carriers, to be transported from the city of New York to the city of Philadelphia, ought to be permitted to show, in an action brought by the bailors or their assignees, that the bailors had no right to the goods whatever; that they had obtained the possession of them fraudulently from the true owner without his consent; and that upon demand made of the goods by the latter, the defendants below, who are the plaintiffs in error here, had delivered them to him.

In Rolle Abr. 606, tit. Detinue, it is said, if the bailee of goods deliver them to him who has the right to them, he is still notwithstanding chargeable to the bailor who in truth has no right; and for this 9 Hen. 6, 58, is cited. So if the bailee deliver them to the bailor in such case, he is said not to be chargeable to the true owner thereof, Ibid. 607; for which 7 Hen. 6, 22, is cited. And again, in Fitzherbert's N. B. 138-9, tit. Writ of Detinue, M., it is laid down, if a man have goods delivered to him to deliver over to another, and afterwards a writ of detinue is brought against him who hath right unto the goods; now if the defendant, depending the action, deliver the goods over to whom they were bailed to him for to deliver, the same is a good bar in the action, because he hath delivered them according to the bailment made unto him. But it is said, if I deliver a deed to A., to which B. hath right, and A. dies, and his executor takes the deed, he is not chargeable in detinue to me, but only to B., who hath the right, because he comes to it by law. 1 Rolle Abr. 607, tit. Detinue, for which 9 Hen. 6, 58, is quoted. The reasoning, which we meet with in support of these several positions, is by no means satisfactory; nor yet in accordance, I apprehend, with analogical principles. In 1 Bac. Abr. 369, tit. Bailment (A) the reason assigned why C., to whom the goods of A. were bailed by B., must not deliver them to A. the real owner is, that C. cannot pretend to remove or alter that...