Carlisle & Finch Co. v. Iron City Sand Co.

20 Pa. Super. 378, 1902 Pa. Super. LEXIS 244

• Court: Superior Court of Pennsylvania
• Decided: May 22, 1902
• Docket: Appeal, No. 87
• Status: Published

Opinion

Opinion by

W. D. Porter, J.,

The plaintiff’s statement specifically averred that the steamboat headlight, to recover the value of which this action was brought, was the property of the plaintiff; that upon the order of one Isaac Fry, who assumed to act for and on behalf of the defendant, the headlight was delivered to a common carrier at Cincinnati consigned to the defendant company, that the bill of lading was sent to and received by the defendant, that the defendant presented the bill of lading to the carrier at Pittsburg and received and receipted for the headlight, which has ever since remained in the possession of the defendant; that the property was of the market value of $110, which was the price at which it had been ordered on behalf of the defendant by Fry, and that the defendant refused to pay for the property or to return it or to permit the plaintiff to take it. The affidavit of defense did not deny any of these allegations, but averred that Fry had no authority to act as agent for the defendant, and that the furnishing of the headlight was part of the work to be performed under a contract between the defendant company and Fry for which the latter had been fully paid.

It thus appears that the plaintiff never agreed to sell or deliver the headlight to Fry, with whom they dealt as the agent of the defendant. The contract contemplated a sale and delivery to the ■ defendant company. The goods were delivered to the common carrier consigned directly to the defendant, and had Fry been authorized to make the contract into which he entered, such delivery would have vested the title and possession in the defendant. The defendant received the goods from the carrier and receipted for the same, although this was done in ignorance of the fact that Fry had assumed to act as defendant’s agent in the transaction, the delivery of possession thus became actual; no question arising out of a confusion of goods is involved in the controversy, the defendant has the property which is clearly identified. The plaintiff did no act which could invest Fry with title to or possession of the property. The only way in which the defendant could assert a right to retain the possession of the property as against the plaintiff was to adopt the act of Fry, who had without authority previously delegated acted as its agent; this would involve an acceptance of the contract and payment according to its terms. If the defendant disaffirmed the act of Fry, then it was required to surrender the fruits of the contract, and permit the plaintiff to resume possession of the property. .When, under the undisputed facts, the defendant elected to retain possession of the headlight it became liable to the-plaintiff for the market value of the same.

The judgment is affirmed.