Adams Express Co. v. White

Constable, J., delivered the opinion of the Court. The appellee was, at the time of arising of the cause of action herein sued upon, the Baltimore agent of the Mar-chant Calculating Machine Company of California. He shipped from Baltimore to the Blackwood Coal and Coke Co, at Blackwood, Virginia, one of the machines on trial, and understood that the company also sent one to the same party from' California. The machines proving unsatisfactory, the Blackwood Co. delivered to the appellant, 'according to the receipt given to the consignor, the Blackwood Ob., “two boxes calculating machines,” with a value warranted by the shipper to be five hundred dollars, and “consigned to C. R. White, representative Marehant ¡Calculating Machine Co., Baltimore, Md.” The box containing the machine originally shipped from Baltimore was duly received by White, but the second box was never received.

It was because of failure to deliver that machine, that this, suit was instituted by White in his individual character, and resulted in a judgment of two hun-dred and fifty dollars, the selling price of a machine of this kind when new. The case was tried before the Court without the aid of a jury; and five exceptions were taken to the rulings of the Court, four to questions of evidence, and one to the refusal ⁶²⁸ to grant the two prayers offered by the defendants. The plaintiff offered no prayer. The only witness examined by either party was the plaintiff.

The first prayer of defendant sought to direct a verdict for it upon the “theory that under the evidence, White, as consignee, was not a proper party plaintiff. There seems some confusion among the authorities in actions against carriers for loss or conversion of goods entrusted to them for delivery, but it seems to be fairly established that the rule is, that the action should be brought by the owner or one having a beneficial interest in the property. Hutchinson on Carriers, secs. 1304-1320 (3rd Ed.); Elliott on Railroads (2d Ed.), sec. 1692; Thompson on Negligence, Vol. 6, secs. 7420-7424; 6 Cyc. 510. The consignee is presumed to possess the necessary ownership to sue, but this presumption is not conclusive, and may be rebutted. 10 Corpus Juris. 351; Ray, Carrier of Freight, 1006; Griffith v. Ingledew, 6 S. & R.

(Pa. St.) 429; Smith v. Lewis, 3 B. Mon. (Ky.) 229; Arbuckle v. Thompson, 37 Pa. St. 170; Pennsylvania Co. v. Poor, 103 Ind. 553 ; Lawrence v. Minturn, 17 Howard (U. S.) 100.

Mr. White produced and offered in evidence the appellant’s receipt, which, as above noted, showed that the property was shipped, not to C. R. White individually, but to him as the representative of the Marchant Calculating Machine Co. He also testified that he was the agent of the machine company and that they owned the machine sued for, and it was being returned after it had failed to satisfy the prospective purchaser. Whether the appellee was' selling on a commission basis, or employed on a salary, could not give him any right which he was entitled to protect by bringing suit in his own name, for no commission had been earned. We are of the opinion that the undisputed evidence show’s that the appellee had no beneficial interest in the property, and that, therefore, he had no right to maintain this suit and that there was error in refusing the defendant’s first prayer. ⁶²⁹ The second prayer of the defendant asked that a verdict be returned for it, because there was no evidence to show the condition of the machine when it was delivered to the defendant. The refusal of this prayer was correct.

There is a well established rule that in eases of this