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PENNSYLVANIA RAILROAD COMPANY v. BROWNSTEIN. (10/03/56)

October 3, 1956

PENNSYLVANIA RAILROAD COMPANY, APPELLANT,
v.
BROWNSTEIN.



Appeals, Nos. 82 and 83, Oct. T., 1956, from judgments of Municipal Court of Philadelphia, Sept. T., 1952, No. 513, in case of The Pennsylvania Railroad Company v. Albert Brownstein and Bernard Brownstein, individually and trading as Girard Sales Company, and Girard Sales, Inc. Judgments reversed, with venire facias de novo.

COUNSEL

F. Hastings Griffin, Jr., with him Barnes, Dechert, Price, Myers & Rhoads, for appellant.

William L. Matz, with him Zoob & Matz, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Rhodes

[ 182 Pa. Super. Page 67]

OPINION BY RHODES, P.J.

This is an action of assumpsit in which the jury rendered a verdict for defendants. The court below refused

[ 182 Pa. Super. Page 68]

    plaintiff's motions for judgment n.o.v. and a new trial. Plaintiff has appealed from the judgments entered on the verdict.

Plaintiff, The Pennsylvania Railroad Company, brought this action against Albert Brownstein and Bernard Brownstein, and Girard Sales, Inc., to recover the value of six refrigerators alleged to have been misdelivered to them.*fn1

In considering the court's refusal of plaintiff's motion for judgment n.o.v., it is necessary that we view the record in the light most favorable to defendants, resolving all conflicts therein in their favor, and giving them the benefit of every reasonable inference of fact arising from the evidence. Stoner v. Penn-Brixite, Inc., 177 Pa. Superior Ct. 189, 191, 110 A.2d 904. In so doing we find that the evidence indicates the following facts: In August, 1948, defendants ordered seven refrigerators from the United Sales and Equipment Company, Wichita, Kansas. The order was given by telephone to Granville O'Neal, a representative of the seller. There had been previous dealings between the two firms through O'Neal. On this occasion it was agreed that defendants would remit the purchase price of the refrigerators to a bank in Wichita through the Philadelphia National Bank, and that the same was to be paid to the seller upon presentation of a bill of lading, together with an invoice, showing that the goods had been shipped. A letter of confirmation was received by defendants and the purchase price was forwarded and paid to the seller in Wichita. Thereafter

[ 182 Pa. Super. Page 69]

    defendants received an order bill of lading from the Philadelphia National Bank, which they forwarded to their office in New York in order that the refrigerators could be obtained from the plaintiff railroad upon arrival. The bill of lading named the United Sales and Equipment Company both as consignor and consignee, with defendants as the notify party. It was endorsed in blank by O'Neal for the United Sales and Equipment Company. An employe of defendants was notified that the refrigerators had arrived, whereupon a truck was sent to plaintiff's station to receive them. The bill of lading was duly presented and six of the refrigerators were obtained; the seventh was of a description not present in the shipment. In addition to the bill of lading for the seven refrigerators, it appears that there was also outstanding an order bill of lading which was identical with the other ...


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