
    Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company v. Baker, Smith & Company, Appellant.
    
      Carriers — Consignments—Delivery "by mistake — Act of June 8, 1881, P. L. 86.
    
    In an action of trespass, to recover tbe value of a certain shipment alleged to bave been delivered by mistake, to tbe defendant by the plaintiff, a common carrier, the ease is for tbe jury and judgment on a verdict for tbe plaintiff will be affirmed, where tbe evidence is conflicting as to tbe circumstances of the delivery.
    
      Argued April 27, 1923.
    Appeal, No. 124, April T., 1923, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1921, No. 137, on verdict for the plaintiff in the case of Pittsburgh, Cincinnati, Chicago & St. Louis'Railroad Company v. Baker, Smith & Company.
    Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
    Affirmed.
    Trespass t'o recover the value of a consignment delivered by mistake. Before Reid, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff in the sum of $650 and judgment Nhereon. Defendant appealed.
    
      Error assigned was refusal of defendant’s motion for judgment non obstante veredicto.
    
      James Balph, of R. A. & James Balph, for appellant.
    The defendant having received the shipment in good faith and believing itself entitled thereto, and having paid the freight thereon, and later paid the consignee, there can be no. recovery: Long Island R. Company v. Structural Concrete Company, 110 N. Y. S. 379; Farmers Cotton Oil Company v. Railroad Company, 79 Southern 387; Waring v. Penna. R. R. Co., 76 Pa. 491.
    
      W. B. McFall, Jr., and with him Dalzell, Fisher & Dalzell, for appellee.
    July 12, 1923:
   Opinion by

Linn, J.,

This is an appeal from judgment for plaintiffin trespass under the Act of June 8, 1881, P. L. 86, for damages caused by defendant’s wrongfully obtaining from plaintiff and converting to defendant’s own use a shipment of radiators in transit, consigned to a third party. The only complaint we need consider is the refusal to enter judgment n. o. v. The consignee was Garden City Fan Company at Pittsburgh. The shipment was delivered there to the Pennsylvania Transfer Company, a local deliverer, which paid the freight, and which, as the verdict establishes, acted for defendant. The court instructed the jury to determine from the evidence whether plaintiff parted with its possession by mistake to defendant, who was not entitled to receive them, or whether the delivery to defendant was authorized; no complaint is made of the charge; there was evidence both ways, which we need not discuss, as it was the duty of the jury and not ours to find the fact; its finding binds us.

Judgment affirmed.  