Breisch v. Leitzel

Opinion by

William W. Porter, J.,

One Breisch bought some 2,450 pounds of red corrugated iron from Mesker & Company. Leitzel bought some 310 pounds of smooth black iron from Merchant & Company. Both lots arrived at the Ringtown station on the Philadelphia & Reading Railroad. Leitzel saw both lots (as proved by the plaintiffs and denied by him), and sent his driver to the station to remove the iron to a point where he was building a house. The driver took both lots. The carpenters, with Leitzel’s knowledge, used a part of the corrugated iron and none of the smooth black iron. Breisch, who had paid $50.00 on account of his corrugated iron, paid the balance by taking up a draft accompanying a bill of lading drawn to the order of the shippers. Finding his iron gone, he made claim against the railroad. They settled with him, took an assignment of his claim and now sue Leitzel. The verdict was rendered for the plaintiff and Leitzel complains, by his assignments, first, that as Breisch’s iron was consigned under a bill of lading to Mesker & Company (the shippers), Breisch had no title or right of action, and therefore the action, in its present form of Briescli to the use of the railroad, cannot be maintained. This is completely answered by what has been said in regard to Breisch’s title to the iron. He paid part of the price in advance. He paid the balance and took up the bill of lading.

The second question raised is upon a point of charge of some length which in effect required the court to direct a verdict for the defendant, because the mistake in the removal of the iron by Leitzel was that of the agent of the railroad company. The answer of the court to the point was in affirmance of the general principle of law that where one of two innocent parties must suffer, he whose want of care occasions the injury must bear the loss. The answer was supplemented, however, by the direction that under the proofs submitted, the jury should determine what was established, both as to the negligence of the company or its agent, and as to the innocent use by Leitzel of the iron which he removed from the railroad station and in part used in the construction of his house.

Upon the facts we think the case was submitted to the jury under as favorable instructions as the defendant had any right to expect. The judgment is therefore affirmed.