Annin v. Cincinnati N. Ry. Co. , 22 Ohio App. 37 ( 1925 )

The original action was brought in the justice court to recover the value of a carload of hay, which, it is claimed, the defendant, through its connecting carrier, the New York, New Haven Hartford Railroad Company, wrongfully delivered to the Matheson Vail Company at New Bedford, Mass. The justice found against plaintiffs, and entered judgment in favor of defendant for costs. The plaintiffs prosecuted error to the court of common pleas, where the judgment was affirmed. Thereupon the plaintiffs in error in the court of common pleas prosecuted error to this court, and seek reversal of the judgments.

As the parties have occupied the same relative positions in each court, they will be referred to as plaintiffs and defendant.

Plaintiffs claim by assignment the alleged right of action which belonged originally to the Saunders Sales Corporation. The Saunders Sales Corporation shipped a carload of hay over the Cincinnati Northern Railway Company from Waldron, Mich., consigned to the Saunders Sales Corporation at Waterloo, N.Y., in car M.C. 51568. There are two Waterloos in the state of New York, and through some mistake the car in question was shipped to the wrong one. This has nothing to do with the case, however, for later by agreement the car was reconsigned to the Saunders Sales Corporation at New Bedford, Mass., with instructions to notify the Matheson Vail Company and deliver the car in question upon payment of draft. Counsel for defendant does not seriously contend that the delivery by the railroad company of the carload of hay to the Matheson Vail Company at New Bedford, Mass., was not wrongful. We can readily understand his position in this connection, because it seems apparent that the railroad company wrongfully delivered the hay to the last-named company before the draft for the purchase price of the hay had been paid by the Matheson Vail Company, as required by the shipping instructions.North Penna. Rd. Co. v. Commercial Bank of Chicago,123 U.S. 727, 8 S. Ct., 266, 31 L. Ed., 287.

The defendant, however, claims that, although the delivery was wrongfully made, the Saunders Sales Corporation thereafter ratified the transaction which involved the delivery.

With regard to the alleged ratification, the facts are as follows:

The car arrived at New Bedford August 28, 1922, and, in accordance with instructions received from the Matheson Vail Company, it was delivered by the railroad company to the City Coal Company. Previously, on August 12, 1922, the Saunders Sales Corporation had drawn the draft referred to on the Matheson Vail Company in the sum of $181.13, which had been sent to the Citizens' National Bank of Boston, Mass. This draft was never paid, and on September 25, 1922, the Saunders Sales Corporation requested the return of the draft. On September 15, 1922, the Matheson Vail Company sent to the Saunders Sales Corporation a check for $463.38, and a letter inclosing a statement showing a balance due the Saunders Sales Corporation of the same amount. The statement contained the following credit: "September 8th, car 51568, $171.66."

On September 19, 1922, the Saunders Sales Corporation wrote the Matheson Vail. Company as follows:

"We are in receipt of your letter with statement and check, and have placed same to your credit, and will check up statement fully and let you hear from us later."

On September 25, 1922, the Saunders Sales Corporation again wrote the Matheson Vail Company in reference to checking up the statement and asking it to supply certain paid freight bills, but otherwise found no fault with the statement. There the matter was allowed to rest.

The railroad company, with its connecting carrier, was the agent of the Saunders Sales Corporation in transporting the carload of hay, and, while the act of delivery was unauthorized, we are of the opinion that the receipt of payment by the Saunders Sales Corporation from the Matheson Vail Corporation of $463.38, $171.66 of which was to apply upon car 51568, was a ratification of the unauthorized act of delivery.

The Matheson Vail Company had a right to indicate upon what indebtedness the money which it sent should be applied. If the Saunders Sales Corporation retained the check under such circumstances, and passed it to the credit of the Matheson Vail Company, there would be a satisfaction of the indebtedness, at least pro tanto, to which the Matheson Vail Company directed it to be applied. Stewart v. Hopkins, 30 Ohio St. 502. The acceptance of such a payment upon the car delivered would amount to ratification. A.D. Blowers Co. v. Canadian Pac. Ry. Co., (C.C.), 155 F., 935; Woolston v. Southern Ry. Co.,177 Mo. App., 611, 160 S.W. 1023; W.H. Stanchfield Warehouse Co. v. CentralRd. of Oregon, 67 Or. 396, 136 P. 34.

As the Saunders Sales Corporation ratified the act of the agent in making delivery, its assignees, the plaintiffs, were bound thereby. The judgment will therefore be affirmed.

Judgment affirmed.

RICHARDS and YOUNG, JJ., concur.