Violett v. Stettinius

Decided March 15, 1839

Replevin, for ninety kegs of butter. The case agreed was in substance this. On the 27th of December, 1837, one Saughen-baugh, at Pittsburgh, in Pennsylvania, received from the plaintiff’s agent, ninety kegs of butter, weighing 5,738 pounds gross, which he promised in writing to deliver in good order in Georgetown, D. C., to E. Lyons, or order, within sixteen days, he paying to Saughenbaugh $1.75 per 100 pounds carriage, for the same.

Decided 1839-03-15

Cranch, C. J.

¶1I am of opinion that as the plaintiff claimed and offered to receive the butter in Washington, on the 22d of January, 1838, the defendant was entitled either to the whole freight, or freight pro rata. I think the whole, because he offered to deliver the butter either in Georgetown or Washington, at the option of the plaintiff, if he would pay the freight; but he refused to pay any freight at all. The delay was a proper subject of a claim for damages by the plaintiff against Saughenbaugh.

¶2The plaintiff might have refused to receive the butter. He might have abandoned it, and brought his action against Saugh-enbaugh ; but having claimed it, and offered to receive it at Washington, he cannot lawfully resist the claim for freight.

Thruston, J., concurred..

¶3Verdict for the defendant for the freight.