Wernwag & Dawson v. Phil., W. & B. R. Co. , 117 Pa. 46 ( 1887 )

Opinion,

Mr. Justice Green:

From the facts appearing in the case stated it is manifest that the plaintiff intended to sell, and in point, of fact did consign, the goods in question to A. Behrend and not to L. Behrend. They knew the former and were satisfied to sell to him. They did not know the latter and did not intend to sell to him. They supposed that A. Behrend was intended as the purchaser in the order, though L. Behrend was named. Granting this to be a mistake of theirs in the reading of the order, it does not in the least alter the fact that A. Behrend was the person to whom they supposed they were selling. However that may be, they certainly consigned the goods to A. Behrend, and there was then such a person living in Washington, the place to which the goods were shipped;

It cannot be questioned for a moment that it was the duty of the carrier to deliver the goods to the person to whom the owner consigned them. If the carrier does not so deliver them, he acts at his peril, and the whole risk of a wrong delivery rests upon him. In Shenk v. Steam Propeller Co., 60 Pa. 109, we said, Sharswood, J.: “ Whatever doubt may hang over the question as to the termination of a carrier’s or other bailee’s responsibility, there is one point which is indisputable, that he must take care at his peril that the goods are delivered to the right person, for a delivery to a wrong person renders him clearly responsible though innocently and by mistake.”

In the present case the goods were delivered to L. Behrend, and, as between the plaintiffs and the carrier, that was undoubtedly a wrong delivery. But it is argued that the delivery to L. Behrend was made in consequence of the direction of Murphy, who it is said was the plaintiffs’ agent. If, in the case stated it appeared that Murphy did direct the delivery to L. Behrend, this contention would have great force; because it was Murphy who sold the goods and sent the order, and it would be difficult for the plaintiffs to escape the consequences', of his act' in directing the delivery. But the only averment, upon this subject which the case stated contains, is in the following words: “ Before delivering the goods to the said Leopold Behrend, the agent of the railroad company defendant, inquired of the said Wilbur F. Murphy, the agent who had taken the order, whether he had sold any goods to Leopold Behrend and what class of goods they were; and after Murphy had said that he had sold goods to Leopold Behrend, and had described them, the agent of the defendant delivered them to Leopold Behrend. The goods so delivered were the same goods which plaintiffs had shipped to A. Behrend as aforesaid.” From this it appears that Murphy gave no directions to deliver the goods to any one. He merely said he had sold goods to L. Behrend and described them. Granting that they were the same kind of goods, and even the same goods, which Murphy had sold to L. Behrend (and this important fact is not mentioned in the case stated), yet that.was as far as Murphy went, or as he was asked to go, in giving information. The effect of that information, as sufficing to exonerate the defendant from liability for a wrong delivery, was a matter of which the defendant through its agent took the entire risk. In this at least the plaintiffs were in no -fault. Their agent, if Murphy was their agent, simply told the defendant’s agent that he had sold goods to L. Behrend and described them, and thereupon the defendant’s agent delivered these particular goods to L. Behrend. By what authority did he do this ? The goods were consigned to another person, and the defendant’s duty was to deliver to that person. Surely that duty was not discharged by a delivery to one who was not the consignee, merely because the plaintiffs’ agent had sold similar goods to such a person. The fact still remained that the goods were not delivered to the one to whom they were consigned. The entire risk of a delivery to the right person was assumed by the defendant, and a wrong delivery was made by the mistake of the defendant’s agent, which of course is their misfortune. We are clearly of opinion that the plaintiffs were entitled to judgment on the case stated.

The judgment is reversed and judgment is now entered on the case stated in favor of the plaintiffs and against the defendant, for the sum of $240-=^, with interest from November 5,1888, with costs.