Railway Express Agency v. Marchant

HOOD, Associate Judge. Several individuals, trading as Equitable Credit Company, and their agent, one Swett, sued Marchant Calculating Machine Co. for $636, the price of a calculating machine ordered and paid for by Swett as agent of the Credit Company, which machine was alleged not to have been delivered. The Marchant Company, admitting that the machine had been ordered and paid for, answered that it had been shipped through the Railway Express Agency and delivered to Swett. The Marchant Company also filed a third party complaint, naming the Express Agency as third party defendant, alleging that the machine had been delivered to the Express Agency for transportation to Swett, and there had been received from the Express Agency a copy of a receipt showing delivery to Swett and purporting to be signed by him. Judgment was sought against the Express Agency for any sum that might be adJudged against the Marchant Company in the main suit. The Express Agency in its answer asserted that its liability in no event could exceed $150, the value of the machine as declared by the shipper in the uniform express receipt. The evidence showed that Swett ordered and paid for the machine, directing that it be shipped to him at Room 404, 930 F Street, Northwest, Washington, D. C.; that the machine was delivered by the Merchant Company to the Express Agency in California, express charges prepaid, with instructions to deliver it to Swett at the address stated; that prior to delivery the Credit Company and Swett moved from the stated address to another address, but did not notify either the Marchant Company or the Express Agency of the change of address; that when the machine arrived in Washington it was taken by an employee of the Express Agency to the address to which it was consigned and there the new occupant of the office informed the employee that Swett had moved; that some days later the box was seen in the hall outside the office and the new occupant telephoned the Credit Company that a box for Swett had been left in the hallway and was told that it would be picked up; that the box was taken away several days later by an unknown person; and that neither the Credit Company nor Swett ever received the machine. A receipt purporting to be signed by Swett was offered in evidence but the trial court found that the signature was a forgery. The employee of the Express Agency who made the attempted delivery left the employ of the Agency shortly thereafter and could not be located at the time of trial. The trial court awarded judgment for $636 in favor of the Credit Company against the Marchant Company, and awarded judgment for the same amount in favor of the Marchant Company against the Express Agency. The Express Agency has appealed solely on the ground of the amount of the judgment against it.