J. W. Moore & Son v. Henry

18 Mo. App. 35 | Mo. Ct. App. | 1885

Opinion by

Ellison, J.

The agreed statement of facts is to be taken as a special verdict, and everything necessary to sustain the judgment must clearly appear in the statement. Hughes v. Moore Adm'r, 17 Mo. App. 148.

It will be noticed that plaintiffs only directed their wholesale merchant and consignor to ship the goods by way of Keokuk to Princeton. It does not appear that the railway company knew of such direction unless it be said that the mark on .the boxes was a controlling direction as to the shipment. The bill of lading called for a delivery of the goods to “ John W. Moore & Son, Eagle-ville, Mo., via Keokuk.” This must be taken as the ■contract between the parties and the shipper (who was plaintiff’s agent in the shipment) will be bound by its provisions. Hutchinson on Carriers, sects. 241, 243 ; Ry. Co. v. Cleary, 77 Mo. 634 ; O'Brien v. Kinney, 74 Mo. 125. The bill of lading, though differing from the mark on the goods, will control, as to the terms therein expressed, including destination. The Keokuk & St. Louis By. Co. having no line of its own from Quincy to Eagle-ville via Keokuk, it performed its duty by delivering the goods to that carrier having a line and depot nearest to Eagleville. Hutchinson on Carriers, sect. 108. And defendant being such line, it was the duty of defendant to receive the property, and its right to pay the back charges thereon, for the payment of which it would retain a lien on the goods, as well as for its own freight bills. Wells v. Thomas, 27 Mo. 17; Briggs v. B. & L. Ry. Co., 6 Allen 246. Defendant’s nearest station and depot to Eagleville being Blythedale, a delivery of the goods there was a fulfilment of the contract on its part as a connecting carrier. If this were an action against the Keokuk & St. Louis Company, which issued the bill of lading, for non-delivery of the goods, although beyond its terminus, it would be liable, if the contract was made with a proper representative of the company. Loomis v. W., St. L. & P. Ry. Co., decided at this term. It follows that defendant has a lien for its freight and back charges and this having been neither paid nor tendered, plaintiffs were not entitled to the possession of the goods.

The judgment is reversed and the cause remanded.

All concur.