Union Express Co v. Shoop , 1877 Pa. LEXIS 254 ( 1877 )

Mr. Justice Paxson

delivered the-opinion of the court, November 19th 1877.

The application of a moderate amount of common sense with a reasonable spirit of accommodation would have saved the parties the expense of this litigation. The original contention was about a very small matter, the sum of §1.25, for express charges upon a package of merchandise of the value of §26.25, shipped by Lippincott & Johnson, Philadelphia, to John II. Shoop (plaintiff below), Free-port, Pa. The package was delivered to the Adams Express Company, in Philadelphia, and the express charges were prepaid to Freeport. This company carried the package to Pittsburgh, and then delivered it to the Union Express Company, plaintiff in error, which company carried it to Freeport, its place of destination. By the neglect of the Adams Express Company the package was not marked prepaid on the way-bill. Upon its arrival at Freeport the Union Express Company notified Mr. Shoop that the package was at their office, but declined to deliver without payment of the charge for freight. There is evidence that the agent of the company offered to refund the freight if it subsequently appeared that it had been paid at Philadelphia. It is also undisputed that Mr. Shoop wrote to the shippers in Philadelphia, and received from them a reply, enclosing the receipt of the Adams Express Company. After the receipt of this letter, Mr. Maxler, the clerk of Mr. Shoop, called at the express office and exhibited the letter, but did not show the receipt. This omission was singular, the more so, as in all probability the production of the receipt would at once have ended the difficulty. Why it was not done has not been explained.

Upon the refusal of the company to deliver the package under the foregoing circumstances, the plaintiff below brought this action of trover to recover its value. The court below ruled that under the contract with the Adams Express Company the Union Express Company was bound to deliver the package to Mr. Shoop, upon its arrival at Freeport, without payment of the charge for freight, upon the ground that by the arrangement between the two companies, the plaintiffs in error took upon themselves to complete the performance of the contract implied in the express receipt given in evidence, by expressing the goods from Pittsburgh, the end of the Adams line, to Freeport, then to deliver the goods in a reasonable time to the consignee, as the law requires. It is undoubtedly true that by virtue of the receipt and the understanding between the companies, the plaintiffs in error undertook to complete the contract made with the Adams company, so far as to safely carry the goods from Pittsburgh to Freeport, and to deliver them within a reasonable time to the consignee. But this was the extent of their obligation. They did not assume responsibility for any acts or omissions of the Adams company. The shipping receipt of the latter company contained this clause: “ And if the same is intrusted or delivered to any other express company or agent (which said Adams Express Company are hereby authorized to do), such company or persons so selected shall be regarded exclusively as the agent of the shipper or owner, and as such alone liable, and the Adams Express Company shall not be, in any event, responsible for the negligence or non-performance of any such company or person, and the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained, shall extend to and inure to the benefit of each and every company or person to whom the Adams Express Company may intrust or deliver the above-described property for transportation, and shall define and limit the liability therefor of such other company or person.” The plain meaning of this is that each company shall be responsible to the shipper or owner for the property while in its custody, but not for the default or negligence of any other company or person. How, in what was the Union Express Company in default ? They had carried the package safely, and were ready to deliver upon payment of the freight charges. But it is said it was their duty to have informed themselves as to whether the express charges were paid or not. They w7ere informed by the way-bill that the charges were not paid. It is true this was an error. But whose fault was that? Manifestly that of the Adams Express Company, by whose neglect it occurred. Under the circumstances, the Union company being in no default, what was its duty ? The answer is not difficult. It was to deliver to the consignee within a reasonable time upon notice and satisfactory evidence that the freight charges had been paid. If such notice was not given by the consignee at Freeport, he has no ground of complaint if the company declined to deliver until such reasonable time as they could inquire into and ascertain the facts. Still less reason has the consignee to complain if he had in his possession the evidence of the prepayment of the freight and neglected or refused to produce it. The Union Express Company were entitled, under the circumstances disclosed by the evidence, to a reasonable time, to be measured by the distance to Philadelphia, and the facilities of communication, to ascertain whether the charges had been paid to the Adams Express Company, after which it would be their duty to deliver the package, in case of such prepayment, to the consignee when required. These views of the law, as it will be seen, differ essentially from the rulings of the learned judge of the court below in his answer to the defendant’s fourth point, and also in that portion of his charge embraced in the 13th assignment of error. We notice nothing else in this record that needs to be discussed.

The judgment is reversed, and a venire facias de novo awarded.