DocketNumber: Appeal 251
Citation Numbers: 98 Pa. Super. 134, 1930 Pa. Super. LEXIS 160
Judges: Keller, Porter, Tresxer, Ket, Linn, Gawthrop, Cunningham, Baxdrige
Filed Date: 10/22/1929
Status: Precedential
Modified Date: 10/19/2024
Argued October 22, 1929. Defendant, the consignee under an order bill of lading of a car of bran, notified the plaintiff in writing to reconsign the shipment to his, defendant's, own order at Milford, Delaware, Pennsylvania Railroad delivery, "Notify J.E. Holland;" and in the reconsignment order requested the plaintiff company to "prepay freight and all charges." The plaintiff did so, the car was delivered as ordered, and the plaintiff brought this action for the freight charges.
Defendant seeks to escape payment by averring in his affidavit of defense that on March 6, 1924, two days after he sent the reconsignment order above mentioned, he wrote the plaintiff company asking it to cancel his instructions as respects forwarding the shipment on a prepaid basis and allow it to move "with all charges to follow the car, collecting same at its destination from the consignee in the usual and customary manner." In his affidavit he calls this letter a cancellation of his prior request for prepayment of freight, but apparently overlooks that when the railroad company agreed to the terms of his reconsignment order and started the movement of the freight thereunder it became a contract, whose conditions or terms of payment he could not cancel or change without its consent, and he does not aver in his affidavit that such consent was ever given. It was a matter on which the parties were free to contract, subject to the rule which prevents discrimination: L. N.R.R. v. Central Iron Co.,
As respects the reshipment the defendant was the consignor. The shipment was not made on a straight *Page 137
bill of lading to a named consignee, but on a negotiable or order bill, deliverable to defendant's order. The points of difference between the two are set forth in Utley v. Lehigh Valley R.R.,
There was in this case, therefore, not only the primary liability for freight charges ordinarily attaching to a consignor who makes a shipment of his goods, (P.R.R. Co. v. Whitney Kemmerer,
There is nothing in the affidavit which by reasonable intendment can be construed to amount to an averment of payment. If the defendant claims to have himself paid these freight charges he is held to the duty of saying so and disclosing the facts in detail in his affidavit; if it is claimed that a third party, as the holder of the bill of lading, paid the charges when delivery of the car was made, the defendant must make a definite averment to that effect giving such details as are within his knowledge. No such definite statement is contained in this affidavit.
We are all of opinion that the affidavit is insufficient to prevent judgment.
The assignment of error is sustained. The order is reversed, and the record is remitted to the court below with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered. *Page 139