Lake Shore & Michigan Southern Railway Co. v. Ellsey , 1877 Pa. LEXIS 248 ( 1877 )

Mr. Justice Sterrett

delivered the opinion of the court, November 12th 1877.

Replevin cannot be maintained without showing either a general or special property in the plaintiff, together with the right of immediate possession. Neither of these was proved in this case, and consequently the plaintiff was not entitled to recover.

On the 13th December 1872, the Treadwell Stove Company shipped, by the plaintiff’s road, from Albany, New York, to Erie, Pennsylvania, a lot of stoves, marked on the cards or tags attached thereto, u Gr. W. Elisey, Erie, Pennsylvania.” The bill of lading which accompanied them, in possession of the company plaintiff, contained the same address, and in addition thereto, on the margin, the words, “ Subject to the order of O. B. Redfield,” who appears to have been the treasurer of the stove company. The defendant claimed that he had ordered the stoves from the consignors, on the usual terms and in the ordinary course of business; and there was nothing to show that he knew they were forwarded to him, subject to any restriction as to delivery. Shortly after their arrival at Erie, he was notified that they were in the plaintiff’s warehouse; and on the 6th of January 1878, he paid the freight and they were delivered, on his order. The transaction on his part, so far as appears from the testimony, wus in perfect good faith. If he had obtained possession of the stoves by trick or artifice, a very different case would have been presented; but nothing of the kind was even alleged. After they were received by him, no inquiry was made, nor anything done by the plaintiff' or the consignors until the 23d of February following, when Redfield wrote to the railway company, demanding the stoves. This led to negotiation with the defendant, who finally refused to surrender them, and thereupon three of them were replevied and delivered to the plaintiff. By virtue of its lion, the railway company had a right to retain possession of the stoves until the freight was paid, and the order of Red-field for their -delivery was given. But, upon the receipt of the freight, it voluntarily delivered them into the possession of the defendant, who at that time, so far as appears, was ignorant of any restriction as to the delivery. By thus surrendering the possession to him, without being induced to do so by any act of bad faith on his part, the lien which previously existed was released; and the railway company had no right afterwards to resume possession of the property: Story on Bailments, sect. 588. Nor did the alleged agreement of the defendant to return the stoves, on re-payment of the freight and charges, give the plaintiff a right of action in the present form. If, under the circumstances, the action had been brought by the consignors, as owners of the property, claiming possession on the ground that the delivery was unauthorized by them, a different question might have been presented, but it does not arise in the present case.

There appears to be no substantial error in the record, and the judgment should be affirmed.

Judgment affirmed.