Sanderson v. Lamberton , 6 Binn. 129 ( 1813 )

Tilghman C. J.

Upon the special verdict in this case, it appears that Lamberton the plaintiff below, having a barrel containing twelve castor hats in Philadelphia, which he wished to be conveyed to Carlisle, the place of his residence, agreed with John Semple a common carrier for the carriage of them. Semple without the knowledge of Lamberton, contracted with another carrier of the name of John Chambers for the carriage. Chambers, having received the barrel from the house of Benjamin Scull in Philadelphia, where it was deposited, delivered it to Robert Sanderson, who was also a common carrier, and engaged that on its safe delivery in Carlisle, the plaintiff should pay to the said Sanderson the sum of two dollars. This also was without the knowledge of the plaintiff. The barrel was lost by the negligence of Sanderson; and the only question is, whether this action can be supported by the plaintiff. That the estate of Sanderson must be answerable for the value of the hats, there is no doubt, because he undertook to . .carry them and he lost them. If Lamberton had purchased the goods in Philadelphia, and given general orders to the person from whom he purchased, to send them to Carlisle, and that person had contracted with Sanderson for the carriage, it is certain that an action for the loss might have been brought by Lamberían, because the property was his, and the contract was made for his benefit. But a distinction is set up in the present case. It is said that the plaintiff gave no such general order, but made a particular contract with a carrier of his own choosing-. True, he did; but it does not follow that he might not relinquish that contract. Surely he might, and it appears to me that he has relinquished it by bringing this action. Chambers may be now considered as the agent of the plaintiff, contracting with Sandp-son; because the plaintiff has affirmed the contract. Supposing that the plaintiff might have looked to Semple in the first instance, yet he cannot do so no-w, because he has elected to adopt the contract made with Sanderson. I see no difficulty in the case, and am clearly of opinion, that the judgment should be affirmed.

Ye ates J.

gave no opinion, having been prevented from sitting at the argument.

Br.ackenr.idge J.

An action of trover and conversion could no doubt be supported by Lamberton against Sander-son, for the general or absolute property was in Lamberton, and a special only or qualified property in Sanderson; and the not delivering to Lamberton, for whose use he had received the property, but retaining, must be construed a turning to his own use. It is the same thing in legal contemplation, as if he had found the property of Lamberton on the highway, and refused, to deliver. The only difficulty is that of a technical subtlety, the declaring in assumpsit. An express promise is alleged as made by Semple in the first instance, and this is in the way of an implied promise by Sanderson to deliver; expressum cessare facit taciturn. This is not a place for the application of the maxim. It is an original undertaking by Sanderson, at the instance of Semple, to deliver to Lamberton. Semple may be considered as acting as the agent of Lamberton in making this agreement, and contracting with Sanderson. Suppose Semple living, who is said to be dead, and Lamberton releasing to him his right of action on this contract,' his testimony would fix the undertaking upon Sanderson, and make him answerable. The jury have found all that Semple could have proved, and the undertaking becomes express with Semple on behalf of Lamberton, that he Sanderson would carry these goods. This may be said to be something like an astutia in the case, but in order to avoid circuity of action it is allowable. Square, whether by a fiction, for the sake of equity and to avoid circuity, it might not be carried further, as 1 think it was in a case where I was concerned at the bar, where A sold a horse to B, who transferred to G, who also transferred to D; and it turning out that A had fraudulently concealed defects in his sale to B, D brings his action against A. But this I throw out for the consideration what may be done to reach justice against him who was the first occasion of the wrong, and put into- circulation it were a horse that was unsound. An action might perhaps accrue to the last holder.

Judgment affirmed.