DocketNumber: Appeal, No. 172
Citation Numbers: 3 Pa. Super. 282
Judges: Beaver, Orlady, Reeder, Rice, Smith, Wickham, Willard
Filed Date: 1/18/1897
Status: Precedential
Modified Date: 2/18/2022
Opinion by
All the assignments of error in this case, except four, relate to a deposition taken under commission by the defendant, portions of which were used by the plaintiffs in making out their case. The deposition was used by the plaintiffs by permission of the court, under conditions which seem to be reasonable.
There are practically but two questions in the case. Was the bill of lading produced by defendant on the call of the plaintiffs and offered by them properly excluded? We think not. The bill of lading which was furnished voluntarily by the defendant to the plaintiffs on the surrender of the shipping receipt was in part at least the contract between the parties. The shipping receipt provides that “ The acceptance of this receipt for goods made subject to the provisions of the bill of lading of this Company makes this an agreement between the Merchants’ Despatch Transportation Company and carriers engaged in transporting said goods and all parties interested in the property.” The plaintiffs should not have been confined, therefore, to the shipping receipt, but were entitled to have the bill of lading, as to the provisions of which the receipt was made subject, in evidence as a part of the agreement between the plaintiffs and defendant. The lapse of time between the shipping of the goods and the exchange of the shipping receipt for the bill of lading was not material in the case. There was no claim for loss or damage in transportation but for a wrong delivery, after the goods reached their destination. It seems to us that the bill of lading should have been received at the time it was offered and, if the contents thereof or subsequent development of the case necessitated the limiting of its effect, it was entirely within the control of the court, and its effect could have been so limited.
The facts in the case should have been submitted to the jury. Michell’s own testimony shows that he was merely agent of W. B. Robinson at Tyler, Texas, to whom the goods were addressed at the time they were ordered, and was paid by the month for conducting the business. W. B. Robinson was not merely a name under which Michell purchased goods but was