
    Sanderson Executor of Sanderson against Lamberton.
    
      Chambersburg, Monday, September 27.
    agreed with ^tiiTca?-' «age of certain goods. B without the direction of "¿anfaier carrier for the carriage of the same goods; and C without Section of 5ÍW agreed with J) a lost them. Held maínmi™suit apmst d, and hi^actionTe trao“¿lde with' him hy G, and could not after recover from ■*’or G-
    IN ERROR.
    THIS was an action against Sanderson the testator, on the custom as a common carrier, for not delivering to Lamberton a barrel of castor hats, which in consideration of , ,. , , _ two dollars, he had agreed to carry from Philadelphia to Carlisle. The suit was instituted in the Common Pleas of Cumberland, and during its pendency Sanderson died, and ,. , 1 Xus executor was made a party, by scire Jacios. In this Court -it was argued upon the following special verdict, on which the Court below gave judgment for the plaintiff,
    “ The jurors empannelled and sworn to try the issue “ joined in this cause, respectively do find, that the plain- ££ tiff James Lamberton, on the twenty-eighth day of April “ Anno Domini one thousand seven hundred and ninety-six, “ being in the city of Philadelphia, bargained and contracted . r 7 r. 7 -1 11 , . with a certain John ¿temple, then and there being a “ mon carrier, to carry for hire, a barrel containing twelve C£ castor hats, the property of the said James Lamberton, “ which said barrel with its contents, the said John Semple <£ agreed to deliver in a reasonable time, to the said James ££ Lamberton, at his store in Carlisle, which said barrel of “ hats, were at the time of the aboye contract, deposited “ with Benjamin Scull of' the said city. The jurors afore- “ said do further find, that the said John Semple after-t£ wards, without the direction of the said James Lamberton, “ did engage and contract with a certain John Chambers, ££ then and there being also a common carrier for hire, that t£ he the said John Chambers, would deliver the said barrel of ££ hats to the said James Lamberton, at his store in Carlisle, “ in a reasonable time. And the jurors aforesaid respec- “ tively do further find, that in pursuance of the agreement ££ so made, between the said John Semple and the said “ John Chambers, he the said John Chambers received the “ said barrel of hats from the said Benjamin Scull, and that £1 the said John Chambers then and there, without the know- “ ledge or direction of the said James Lamberton, did agree “ with Robert Sanderson, the defendant’s testator, (the “ said Robert then and there being a common carrier for “ hire) that the said Robert should carry the said barrel of “ hats, and in a reasonable time deliver the same to the “ said James Lamberton, at his store in Carlisle. And the “ said John Chambers, did then and there undertake that “ the said James Lamberton would pay him the said Ro- “ bert, for the carriage of the said hats, the sum of two “ dollars, upon the delivery of the said barrel of hats at “ the store of the said James Lamberton, in the borough of “ Carlisle. In pursuance of which said agreement, the said “ Robert then and there received from the said John “ Chambers, the said barrel of hats. And the jurors afore- “ said do further find, that the said barrel of hats was not “ delivered to the said James Lamberton, at his store “ in Carlisle, in a reasonable time by the said Robert, but “ that the same was entirely lost by the negligence of the “ same Robert Sanderson. But whether the plaintiff is en- “ titled to recover &c., the jurors are ignorant, and pray “ the opinion of the Court. And if the Court shall be of “ opinion in favour of the plaintiff,'then the jury find for the “ plaintiff the sum of one hundred and twenty-eight dollars “ and twenty-nine cents damages, and six cents costs. But “ if the Court shall be of opinion in favour of the defen- “ dant, then the jurors find for the defendant.”
    
      Metzger argued for the plaintiff in error,
    that here there was an express contract made between Chambers and Sanderson, which negatived any implied contract between the latter and Lamberton; and that as Sanderson could not have recovered his compensation from Lamberton, neither could the latter recover the value of his goods from Sanderson. The action against the carrier must be in the name of the consignor who agreed with him, and was to pay him; and in this case Chambers was the consignor, acting for himself, and not for Lamberton, because Lamberton gave no authority to Semple to make a contract for him, nor did Semple give any to Chambers. The contract by Lamberton was specially made with a carrier of his own choice. He neither narped Sanderson as the carrier, nor was Sanderson employed under a general order given by Lamberton to employ any carrier. He therefore cannot maintain the action. Duncan v. Keiffer 
      , Davis v. James 
      , 2 Com. on Con. 315.
    
      Parker and Car others contra.
    
      Sanderson!s estate is clearly liable, and the only question is, by whom the action should be brought. The present action avoids circuity, and that is of itself a strong argument for it. But in addition to that, the contract with Sanderson was clearly made for the benefit of Lamberton, and he has therefore a right to affirm it, and sue upon it. He has affirmed it by the suit. Still further, he was the owner of the goods, and an action against a common carrier may be supported in the owner’s name, althoúgh, he has not named the particular carrier. As to the compensation of Sanderson, he had a right to retain for it. Schemer-horn v. Vanderheyden 
      , 1 Selw. N. P. 339., Snee v. Prescot 
      , Godfrey v. Furzo 
      , Evans v. Marlett 
      , Skinner v. Upshaw 
      
      .
    
    
      
       3 Binn. 126.
      
    
    
      
       5 Burr. 2680.
    
    
      
       1 Johns. 139.
    
    
      
      
         1 Atk. 248.
    
    
      
       3 P. Wms. 186.
    
    
      
       1 Ld. Ray. 271.
    
    
      
       2 Ld. Ray. 752.
      
    
   Tilghman C. J.

Upon the special verdict in this case, it appears that Lamberton the plaintiff below, having a barrel containing twelve castor hats in Philadelphia, which he wished to be conveyed to Carlisle, the place of his residence, agreed with John Semple a common carrier for the carriage of them. Semple without the knowledge of Lamberton, contracted with another carrier of the name of John Chambers for the carriage. Chambers, having received the barrel from the house of Benjamin Scull in Philadelphia, where it was deposited, delivered it to Robert Sanderson, who was also a common carrier, and engaged that on its safe delivery in Carlisle, the plaintiff should pay to the said Sanderson the sum of two dollars. This also was without the knowledge of the plaintiff. The barrel was lost by the negligence of Sanderson; and the only question is, whether this action can be supported by the plaintiff. That the estate of Sanderson must be answerable for the value of the hats, there is no doubt, because he undertook to . .carry them and he lost them. If Lamberton had purchased the goods in Philadel phia, and given general orders to the person from whom he purchased, to send them to Carlisle, and that person had contracted with Sanderson for the carriage, it is certain that an action for the loss might have been brought by Lamberían, because the property was his, and the contract was made for his benefit. But a distinction is set up in the present case. It is said that the plaintiff gave no such general order, but made a particular contract with a carrier of his own choosing-. True, he did; but it does not follow that he might not relinquish that contract. Surely he might, and it appears to me that he has relinquished it by bringing this action. Chambers may be now considered as the agent of the plaintiff, contracting with Sandp-son; because the plaintiff has affirmed the contract. Supposing that the plaintiff might have looked to Semple in the first instance, yet he cannot do so no-w, because he has elected to adopt the contract made with Sanderson. I see no difficulty in the case, and am clearly of opinion, that the judgment should be affirmed.

Ye ates J.

gave no opinion, having been prevented from sitting at the argument.

Br.ackenr.idge J.

An action of trover and conversion could no doubt be supported by Lamberton against Sander-son, for the general or absolute property was in Lamberton, and a special only or qualified property in Sanderson; and the not delivering to Lamberton, for whose use he had received the property, but retaining, must be construed a turning to his own use. It is the same thing in legal contemplation, as if he had found the property of Lamberton on the highway, and refused, to deliver. The only difficulty is that of a technical subtlety, the declaring in assumpsit. An express promise is alleged as made by Semple in the first instance, and this is in the way of an implied promise by Sanderson to deliver; expressum cessare facit taciturn. This is not a place for the application of the maxim. It is an original undertaking by Sanderson, at the instance of Semple, to deliver to Lamberton. Semple may be considered as acting as the agent of Lamberton in making this agreement, and contracting with Sanderson. Suppose Semple living, who is said to be dead, and Lamberton releasing to him his right of action on this contract,' his testimony would fix the undertaking upon Sanderson, and make him answerable. The jury have found all that Semple could have proved, and the undertaking becomes express with Semple on behalf of Lamberton, that he Sanderson would carry these goods. This may be said to be something like an astutia in the case, but in order to avoid circuity of action it is allowable. Square, whether by a fiction, for the sake of equity and to avoid circuity, it might not be carried further, as 1 think it was in a case where I was concerned at the bar, where A sold a horse to B, who transferred to G, who also transferred to D; and it turning out that A had fraudulently concealed defects in his sale to B, D brings his action against A. But this I throw out for the consideration what may be done to reach justice against him who was the first occasion of the wrong, and put into- circulation it were a horse that was unsound. An action might perhaps accrue to the last holder.

Judgment affirmed.  