Rawle & Henderson, Harrison G. Kildare, Joseph W. Henderson, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.
[ 166 Pa. Super. Page 467]
Plaintiff filed a complaint in assumpsit to recover damages for the defendant's breach of a bill of lading contract in failing to deliver 30 cases of whiskey (part of a larger consignment) to a consignee in Appleton, Wisconsin. The parties filed appropriate pleadings. The court below rejected defendant's motion for judgment on the pleadings and the defendant appealed.
The basis of defendant's motion for judgment was that the plaintiff admittedly had not complied with the contract set forth in the bill of lading issued by the defendant to the plaintiff, which reads in part: 'As a condition precedent to recovery, claims must be filed in
[ 166 Pa. Super. Page 468]
writing with the * * * delivering carrier, or carrier issuing this bill of lading * * * [and in the case] of failure to make delivery, * * * within nine months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the order to the claimant that the carrier has disallowed the claim. * * * Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.'
Allegedly the whiskey in question was delivered to the initial carrier, the defendant, at Philadelphia about October 14, 1944. The final carrier was the Minneapolis, St. Paul & Sault Ste. Marie Railroad Company, herein called the 'Minneapolis R. R.'
On June 21, 1945, and within the nine month period required by the bill of lading, the consignee filed a written claim with the Minneapolis R. R. for the loss of the 30 cases of whiskey. On October 12, 1945, the Minneapolis R. R. rejected the claim on the ground that the Pennsylvania Railroad Company claimed that the shipment was 30 cases short when delivered to defendant. According to the terms of the bill of lading 'as a condition precedent to recovery, * * * suits shall be instituted against any carrier only within two years and one day from the [date]' when claimant is notified in writing of the disallowance of the claim.
Since the consignee's claim against the Minneapolis R. R. was rejected on October 12, 1945, according to the terms of the bill of lading suit had to be instituted not later than October 13, 1947.
On January 29, 1946, the consignor-plaintiff filed a claim with the defendant, the initial carrier, for the same alleged loss as was demanded of the Minneapolis R. R. The consignor-plaintiff did not accompany this ...