Staake v. Pennsylvania Railroad Co.
| Decision Date | 24 April 1911 |
| Docket Number | 30 |
| Citation | 80 A. 1102,231 Pa. 466 |
| Parties | Staake, Appellant, v. Pennsylvania Railroad Company |
| Court | Pennsylvania Supreme Court |
Argued March 24, 1911
Appeal, No. 30, Jan. T., 1911, by plaintiff, from judgment of C.P. No. 3, Phila. Co., June T., 1908, No. 4,688, for defendant non obstante veredicto in case of William H Staake, trustee of the estate of Saxton Furnace Company, in Bankruptcy, v. The Pennsylvania Railroad Company. Affirmed.
Assumpsit changed by agreement of counsel to trover and conversion. Before McMICHAEL, P.J.
From the record it appeared that the plaintiff claimed damages for the conversion of 3,500 tons of Hiawatha iron ore which had been stored on the docks of the defendant at Erie Pennsylvania.
At the trial it appeared that on August 8, 1903, Drake, Bartow & Co. had on the docks of the defendant company at Erie, Pa., about 6,000 tons of Hiawatha iron ore, and on that day they sent to the Saxton Furnace Company a letter and an order for 3,500 tons as follows:
The Saxton Furnace Company took no steps to separate the 3,500 tons from the other ore, but pledged the order with L. & R. Wister Co. for advances. The amount of ore was depleted from time to time by shipments on various orders until on February 29, 1904, there was only 847 tons on hand. Subsequently the Saxton Furnace Company was adjudicated a bankrupt and William H. Staake was appointed trustee in bankruptcy. Subsequently he made demand on the railroad company for the iron ore, which demand was refused. There was evidence that the order for 3,500 tons was merely for the accommodation of the furnace company, and was without consideration.
At the trial the jury returned a verdict for plaintiff for $12,967.50. Subsequently the court entered judgment for defendant n.o.v., FERGUSON, J., filing the following opinion:
I concur with the trial judge in his view that the order of August 8, 1902, which is the basis of the action, was given for the accommodation of the Saxton Furnace Company, and as between it and Drake, Bartow & Co., it was without consideration, and up to the time of delivery, it was subject to revocation. There is nothing in the evidence which would justify a finding contrary to this view on the facts, and for that reason, judgment should be entered for the defendant non obstante verdicto. I am of opinion, however, that for another reason such a judgment may be sustained.
The action is in trover and conversion, and in such case the plaintiff must show both property in himself and the right to possession at the time of the conversion or commencement of the action: Farmers' Bank v. McKee, 2 Pa. 318; Pennsylvania Railroad Co. v. Hughes, 39 Pa. 521; Duffield v. Miller, 92 Pa. 286. The evidence clearly shows that at the time the order was delivered, Drake, Bartow & Co. had 5,912 tons of ore upon the docks of the Pennsylvania Railroad Company, at Erie. The order of August 8 was for 3,500 tons. In my view, it is of little importance whether or not the order was presented to the railroad company and filed with it in accordance with its rule. There was no attempt made by the Saxton Furnace Company, or by L. & R. Wister & Co., to separate the 3,500 tons represented by the order from the bulk of the ore upon the dock, and for this reason, under the authorities, the title never passed. Wister & Co. accepted the order as a basis of credit, and so long as they left the ore in the mass upon the dock, their security was in jeopardy and liable at any time to be destroyed by shipments. We are not concerned, however, with the position of Wister & Co.; they appear to have been satisfied, and to have surrendered the order to the Saxton Company, or its representative. The rule which would defeat Wister & Co. must necessarily defeat the Saxton Company. The law on the subject is thus stated by ROGERS, J., in Hutchinson v. Hunter, 7 Pa. 140 (page 141): See also Pennsylvania Railroad Company v. Hughes, 39 Pa. 521. In Haldeman v. Duncan, 51 Pa. 66, Duncan bought of Haldeman 300 barrels of oil and paid the purchase money. The oil was pointed out to Duncan as being included in a larger quantity of oil at the place of delivery, and request made to select his 300 barrels. Nothing was done by way of separating or selecting the amount purchased. It was held there was no delivery, the sale was not completed and no title passed to Duncan. A flood having swept away all of Haldeman's oil at the place of delivery, Duncan afterwards demanded delivery of the 300 barrels of oil, which was refused by Haldeman, held that Duncan was entitled to recover the price paid by him. In that case READ, J., repeated the rule as stated by Mr. Justice ROGERS in Hutchinson v. Hunter, 7 Pa. 140.
It is contended, however, that the ancient rule upon the subject has been changed by the more recent decisions in Hutchison v. Commonwealth, 82 Pa. 472, and Brownfield v. Johnson, 128 Pa. 254. In the former case, the Supreme Court recognized an exception to the rule stated because of the necessities of a certain particular trade and the customs of that trade. That case was one in which the distinction is drawn between a sale by a vendor of a portion of a quantity of goods not separated from the mass and all belonging to the vendor, and the sale of oil belonging to the vendor and represented by receipts, the oil being mixed with that of other parties in a pipe line. It will be observed by the opinion of PAXSON, J., that he states the rule which runs through the cases above quoted thus (page 480): The learned justice then proceeds to call attention to the peculiar facts of the case before him (page 482): ...
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