Kemper Mill & Elevator Co. v. HinesKemper Mill & Elevator Co. v. Hines
- Reporters:
- , ,
- Before:
- Small, Ragland, Brown
The order is affirmed and the cause remanded. All concur.
INTERSTATE SHIPMENTS: Liability of Initial Carrier. The initial carrier of an interstate shipment is liable for the acts of the connecting or terminal carrier, under the Federal Uniform Bills of Lading Act. - ———: ———: Reconsignment by Carrier at Terminal Point. The reconsignment of an interstate shipment by the initial carrier at
the terminal point to other points, although it does not issue any new bills of lading but simply writes in the billing the new destination, is a delivery of the commodity to the consignee; and unless such delivery was authorized by the shipper, the initial carrier, upon the consignee‘s refusal to accept the goods, is liable as for a conversion, without any subsequent demand therefor; but if such delivery was authorized by the shipper, the initial carrier is not liable. - ———: ———: ———: ———: Conversion; Surrender of Way Bill. The carrier is not obliged to make delivery of goods hauled by it to a designated point except upon the production and surrender of the bill of lading, and if at such point it re-consigns the shipment to another point, unless authorized so to do by the shipper, and delivers the goods to the consignee there, without at any time having the bill of lading in its possession, it is liable as for conversion.
- ———: ———: Parol Reconsignment. Where goods shipped by an interstate carrier are deliverable at the end of its line to the order of the consignor, the consignor can, as long as he is the holder of the bill of lading, authorize his agent to receive the goods for him, without surrendering the bill, and the delivery will be good as between him and the carrier, no rights of third parties intervening. Nor is the consignor‘s authority to his agent to receive the delivery of the goods required to be in writing, nor does the fact that the bill of lading itself is required to be in writing require the authority of the agent receiving the goods thereunder to be in writing.
- ———: ———: Statute of Frauds. After a contract is completely executed by one party, the other cannot invoke the Statute of Frauds. So that if the initial carrier of goods surrendered possession of them at the end of its line to the consignee under verbal authority given it by the consignor, the delivery having been completely executed, the Statute of Frauds cannot be invoked by the consignor to fasten liability on the carrier as for conversation, even if statutory law required the authority of the agent to receive such delivery to be in writing.
- ———: ———: Alteration of Bill of Lading. The provision of the Federal Uniform Bill of Lading Act (
Sec. 8604-g, U. S. Compiled Stats. 1918 ) that “any alteration, addition or erasure in a bill after its issue without authority from the carrier issuing the same, either in writing or noted on the bill, shall be void, whatever be the purpose and nature of the change, and the bill shall be enforceable according to its original tenor,” has no application to parol agreements between the consignor of a shipment andthe parties to be notified, by which they are made agents of the consignor of a shipper‘s order bill to receive the goods from the carrier without the production or surrender of the bill. - ———: ———: Notifying Purchaser: Special Parol Agreement. The mere fact that the purchaser of goods is required to be notified by the bills of lading in no way gives him any right in, or authority to receive, the goods, or makes him the agent of the consignor to receive them; but such purchaser may be specially authorized by the consignor to receive them at the end of the initial carrier‘s line, and to re-consign them for and on account of the consignor as his agent, and such agency may be established by parol testimony.
- ———: ———: ———: Statutory Provision. The provision of the Federal Uniform Bill of Lading Act (
Sec. 8604-d, U. S. Compiled Stats. 1918 ) that “the insertion in an order bill of the name of a person to be notified of the arrival of the goods shall not limit the negotiability of the bill or constitute notice to a purchaser thereof of any rights or equities of such person in the goods,” applies only to contests with purchasers of the bill, and has no application to contests between the carrier and the shipper while the shipper is still the owner and holder of the bill. - ———: ———: ———: Custom. Testimony that it was the custom for all persons mentioned in shipper‘s order bills of lading as the parties to be notified when the goods arrived at the end of the interstate carrier‘s line, to authorize the carrier to divert the goods to other points, without producing the bills of lading and without special authority from the shippers, is not competent evidence.
- ———: ———: Interest: Conversion. Interest at six per cent per annum on the value of goods converted by an interstate carrier, from the time of the conversion, is recoverable, in the discretion of the jury.
- ———: ———: Value of Goods Converted. Where the bill of lading provides that the measure of damages in case of the wrongful delivery of the goods to the consignee is the value of the goods at the time and place of shipment, testimony as to their value at the time of their conversion is not competent, such provision in the bill being valid.
Appeal from Jackson Circuit Court. — Hon. Thos. B. Buckner, Judge.
REVERSED AND REMANDED.
(1) The petition does not state facts sufficient to constitute a cause of action for conversion, and the evidence wholly fails to sustain a verdict therefor. The appellant‘s request for an instructed verdict should have been given and the court erred in the refusal thereof, to which refusal, appellant excepted at the time. (a) The petition does not allege a demand and refusal to deliver the shipment, nor does the evidence show that any was made, without which, there can be no conversion. Nanson v. Jacob, 93 Mo. 340; 1 Bouvier‘s Law Dictionary (3 Rev.) p. 983; Lovelass v. Fowler, 79 Ga. 134; Polk v. Allen, 19 Mo. 467; 3 Bouvier‘s Law Dictionary (3 Rev.) 3327; 4 R. C. L. 290. (b) There was no tortious taking, without which there can be no conversion. 38 Cyc. 2028; Solberg v. Railroad, 228 Pa. 641; Ry. Co. v. Land & Inv. Co., 247 Fed. 268; Ry. Co. v. French & Co., 41 S. C. 215. (c) There was no use or appropriation indicating a claim of right against respondent. Nanson v. Jacob, 93 Mo. 337; Santa Fe Ry Co. v. Land & Inv. Co., 247 Fed. 268; 4 R. C. L. 290; 38 Cyc. 2028; Solberg v. Railroad, 228 Pa. 641; Schopp Trust Co. v. Mo. Pac. Ry. 115 Mo. App. 338; Sloane v. Caroline Railroad Co., 126 N. C. 487; Mill Co. v. Stocum & Southwestern Ry. Co., 228 S. W. 849; Parker Bell Lumber Co. v. Northern Ry. Co., 69 Wash. 124, L. R. A. (N. S.) 1065. (2) Error in admission of incompetent and immaterial evidence, offered by respondent, and refused to admit competent and material evidence offered by appellant. (a) The bills of lading were issued in the name of and by the St. Louis & San Francisco Railway Company, and as against appellant, were inadmissible, under respondent‘s theory that being in writing they could not be varied by parol. (b) Introduction of parol evidence, checks, drafts covering price paid by respondent for meal at Republic and Aurora, Missouri; of letters, exhibits and parol evidence
Hagerman & Jost for respondent.
(1) The bills of lading are contracts, and are the sole measure of the rights of the plaintiff and the obligations of the defendant. 4 Fed. Stat. Ann. p. 506; 8 U. S. Comp. Stat. 1916, p. 9289, sec. 8604-a; Underwood v. Hines, 222 S. W. 1037; King v. Barbarin, 249 Fed. 305; Georgia Ry. Co. v. Blish Milling Co., 241 U. S. 190, 60 L. Ed. 951; McGinn v. Ry. & Nav. Co., 265 Fed. 84; Brockman Comm. Co. v. Mo. Pac. Ry. 195 Mo. App. 615; Aradalou v. Railroad, 114 N. E. (Mass.) 299; Lewis Poultry Co. v. Railroad, 105 Atl. (Me.) 112; Strahs v. N. Y. Cent., 184 N. Y. Supp. 365; Cincinnati Ry. Co. v. Luke, 186 S. W. (Ky.) 875; M. K. & T. Railroad Co. v. Ward, 244 U. S. 383, 61 L. Ed. (U. S.) 1215. (2) The bills of lading, in so far as they pertain to ownership, transportation, destination and delivery being contractual, may not be controlled, altered or modified:
On arrival at Philadelphia and Lowell the meal was found to be spoiled and unmerchantable and was rejected by Eby & Son.
Plaintiff‘s evidence tended to show that on July 3, 1918, when it ascertained the consignments had been so re-shipped and rejected, it demanded payment for the
The defense pleaded in the answer was that plaintiff, at the time of the billing of said corn meal, had a contract with Jonas F. Eby & Son for the sale of a large quantity of meal and billed the same to East Joliet, Ill., to its own order, with directions to notify Jonas F. Eby & Son; that defendant notified Jonas F. Eby & Son as directed and said Eby & Son refused to accept the same at East Joliet, Ill. That thereafter plaintiff authorized and directed said Eby & Son to have one car forwarded to Philadelphia, Pennsylvania, and another to Lowell, Massachusetts, and same was so forwarded; and on its arrival, it was inspected and rejected as unmerchantable, and plaintiff notified thereof. “And defendant denies and says that it is not true that he converted the same.”
At the trial plaintiff‘s evidence tended to support the allegations of the petition, and that it had never authorized or directed Eby & Son or anyone to have said cars forwarded to Philadelphia or Lowell, or their original destination changed.
Defendant, on its part, offered testimony tending to prove, First: That after the bills of lading were issued, the plaintiff orally authorized the said Eby & Son to instruct the carrier to re-consign or divert the shipments, respectively, from Joliet, Illinois, to Lowell, Massachusetts, and Philadelphia, Pennsylvania, as was done. Second: That the two cars in question were part of an order of 10,000 sacks of corn meal ordered by Eby & Son from plaintiff, originally required to be shipped to Joliet, Illinois, but subsequently changed, by oral agreement of parties before any shipment was made, so as to authorize Eby & Son to order the carrier to re-consign or divert all of said shipments, consisting of twelve or fifteen cars, from Joliet, to various eastern points, and there to be disposed of by plaintiff, or by Eby & Son, as agents for the account of plaintiff, and that all of the other cars were so diverted under such changed agreement and disposed of by plaintiff or for plaintiff by said Eby & Son, prior to July 3, 1918, when plaintiff first notified defendant that it had not authorized the cars in suit to be diverted or forwarded to Philadelphia or Lowell, and that plaintiff would hold the defendant liable as for a conversion of the same. Third: That it was the custom for all shipments made to Joliet, which was not a market for corn meal, but a convenient railroad center from which to reach other points or markets, under bills of lading to shippers’ order, notifying certain parties, for the shipments to be diverted to other points by the carrier at the request of the notify parties, without surrendering or having the bills of lading in their possession or having any special authority from the shippers authorizing such re-consignment or diversion.
The bills of lading provided that: “The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including freight charges if paid.” Both parties tried the case on the theory that the measure of damages was the value of the meal at the time and place of conversion, and defendant assigns error as to certain testimony admitted for plaintiff as to the value of the meal, but which we need not notice in the view we take of the time and place of determining such value.
Defendant also complains of the court‘s refusal of its demurrer to plaintiff‘s evidence, and of certain instructions asked by it, and of the giving of certain instructions for the plaintiff, but the decision of this court on the action of the lower court in excluding the evidence aforesaid offered by defendant, and on other points herein, will also determine the propriety of such instructions and they need not be specifically set out or further referred to.
The verdict was for the plaintiff for $9,091, or $433.50 more than was claimed in the ad damnum clause in the petition.
The court overruling defendant‘s motion for new trial, it duly appealed to this court.
I. The shipments in question being interstate shipments, it is not denied that the defendant, as the initial carrier, was liable for the acts of the terminal carrier at East Joliet under the Federal Uniform Bills of Lading Act. [Railroad v. Blish Milling Company, 241 U. S. 190.]
II. We think, too, that the act of said terminal carrier, at the request of Eby & Son, in re-consigning the corn meal from Joliet to eastern points by changing the way bills, although it did not issue any new bills of
In the case last cited the person to whom the goods were delivered had procured the bill of lading illegally and did not surrender it to the carrier, but he had it, duly indorsed, in his possession, and it was upon the ground that he had it in his possession that the court justified the carrier in delivering the goods to him. But in disposing of the case the court announced the law as follows, at page 198:
“There is nothing in the act which imposes upon the carrier a specific duty to the shipper to take up the bill of lading. Under Section 8 the carrier is not obliged to make delivery except upon production and surrender of the bills of lading; but it is not prohibited from so doing. If instead of insisting upon the production and surrender of the bill it chooses to deliver in reliance upon the assurance that the deliveree has it, so far as the duty to the shipper is concerned, the only risk it runs is that the person who says he has the bill may not have it. If such proves to be the case, the carrier is liable for conversion and must, of course, indemnify the shipper for any loss which results. Such liability arises, not from the statute, but from the obligation which the carrier assumes under the bill of lading. . .
“Although there is a conflict of language in the cases in which a shipper sues a carrier for delivery of the goods without requiring a surrender of the bill of lading, there appears to be no conflict of principle or in decision.
Where the failure to require the presentation and surrender of the bill is the cause of the shipper losing his goods, a delivery without requiring it constitutes a conversion. [Babbitt v. Grand Trunk Railroad, 285 Ill. 267, 120 N. E. 803; Turnbull v. Michigan Central, 183 Mich. 213, 150 N. W. 132; Judson v. Minn. & St. Louis Railroad Co., 131 Minn. 5, 154 N. W. 506; First National Bank v. Oregon-Washington Railroad Company, 25 Idaho, 58, 136 Pac. 798; Railroad v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 Law Ed. 948.] But where delivery is made to a person who has the bill or who has authority from the holder of it, and the cause of the shipper‘s loss is not the failure to require surrender of the bill, but the improper acquisition of it by the deliveree or his improper subsequent conduct, the mere technical failure to require presentation and surrender of the bill will not make the delivery a conversion. [Chicago Packing Co. v. S. F. & W. Railroad Company, 103 Ga. 140, 29 S. E. 698, 40 L. R. A. 367; Famous Mfg. Co. v. C. & N. Railroad Company, 166 Iowa, 361, 147 N. W. 754; Nelson Grain Co. v. Railroad Company, 174 Mich. 80, 140 N. W. 486; St. Louis, Southwestern Railroad v. Gilbreath, 144 S. W. 1051.]” (Italics ours.)
III. As we have seen, the above case of Pere Marquette Railroad Co. v. French & Co., 41 S. C. Rep. 195, holds that the railroad company may deliver the goods to the holder of a shipper‘s order bill of lading (even though not the lawful holder), without the presentation or surrender of the bill. In the case before us, the plaintiff or consignor remained the lawful holder of the bills at the time of the delivery to or re-consignment by Eby & Son. The goods could therefore have been delivered to plaintiff at that time, without the surrender of the bills of lading.
IV. The provisions of the act of Congress aforesaid (
It will hardly be contended that what the consignor could himself do he could not do by his authorized agent. Qui facit per alium facit per se. Consequently, where the goods are deliverable by the bill to the order of the consignor as in this case, the consignor could authorize his agent to receive the goods for him, without surrendering the bill, as long as he is the holder of the bill, and the delivery would be a legal delivery as between him and the carrier, no rights of third party intervening. [Pere Marquette Railroad Co. v. French & Co., supra.]
V. But in such case, would the consignor‘s authority to his agent to receive the delivery of the goods be required to be in writing, as in effect contended by respondent‘s learned counsel and ruled by the court below? We think not. We know of nothing in the Act of Congress or other statutes so requiring. The fact that the bill of lading itself is required to be in writing does not require the authority of the agent receiving the property thereunder to be in writing. Where a contract to sell land is required by the statute to be made in writing and signed by the parties or their duly authorized agents, the agent‘s authority need not be in writing, unless expressly so required by the statute. [Beheret v. Myers, 240 Mo. l. c. 84; Johnson v. Fecht, 185 Mo. l. c. 342; Riley v. Minor, 29 Mo. 439; Johnson v. McGruder, 15 Mo. 365; Tracy v. Berridge, 180 Mo. App. 225.]
VI. Furthermore, after a contract is completely executed by one party the other cannot invoke the Statute of Frauds. [Winters v. Cherry, 78 Mo. 344; Self v. Cordell, 45 Mo. 345; Tuggles v. Callison, 143 Mo. 527; McGinnis v. McGinnis, 274 Mo. 297; Maupin v. Railroad, 171 Mo. 187;
So that if the terminal company at Joliet surrendered possession of the corn meal to Eby & Son under verbal authority given them by the plaintiff, the delivery having been completely executed, the Statute of Frauds could not be invoked by plaintiff, even if there was a provision of law requiring the authority of the agent to receive such delivery, to be in writing. We therefore hold that parol evidence, of the authority of Eby & Son from the plaintiff as plaintiff‘s agent to order the terminal carrier at Joliet to forward said shipments to Lowell and Philadelphia, offered by defendant and excluded by the court, should have been admitted and the court erred in refusing it.
VII. But respondent‘s learned counsel strenuously argues that such testimony was made inadmissible by reason of the following provision of the Federal statute (
VIII. (a) It is also true that the mere fact that Eby & Son were required to be notified by the bills of lading themselves, in no way gives them any rights in
But the claim is here, not that Eby & Son had any such authority by implication from the bill of lading itself, but that they were specially authorized by plaintiff to receive and re-consign the goods for and on account of the plaintiff as the agents of the plaintiff by the parol testimony under consideration.
(b) Said Act of Congress provides (
(c) It is also true that under said Bills of Lading Act contracts for interstate shipments must be evidenced by a bill of lading, which necessarily implies that such contracts must be in writing. Hence, the provisions of such bills of lading cannot be varied by parol testimony. [
But the parol testimony here in question in no way adds to or varies the terms of the bill of lading, because, by the terms of the bill under said Act of Congress, as we have seen, the plaintiff being the owner of the goods
IX. It is also insisted by learned counsel for respondent that inasmuch as the two cars in question were moved from their point of origin, April 10th and April 16, 1918, respectively, they were transactions prior, in point of time, to the shipment of the other cars referred to in paragraph second of our statement of the rejected testimony, and therefore the testimony that such other cars were forwarded to eastern points the same as the two cars in controversy, by Eby & Son as plaintiff‘s agents with plaintiff‘s consent, was inadmissible, as relating to another transaction. But, according to the offered testimony, said two cars were part and parcel of the same order of 10,000 sacks of meal as said other cars referred to, and plaintiff did not complain of the conversion of the cars in question until July 3, 1918, which was after the other cars had been forwarded under orders from Eby & Son for plaintiff to eastern points and disposed of by plaintiff itself or by Eby & Son as its agent. We think, therefore, the testimony as to the handling of such other cars, prior to plaintiff‘s complaint of the conversion herein, was competent and should have been admitted as part of the same transaction as the two cars in question.
X. But we think the testimony embraced within the “Third” paragraph of the rejected evidence, namely, that it was the custom for all shipments made to Joliet, Illinois, under shipper‘s order bills of lading, that the “notify” parties mentioned in the bills as such had authority to authorize the carrier to divert the goods to other points without producing or having the bills of lading and without having special authority from the shippers, was properly rejected. Proof of such
The testimony as to the custom of the “notify” parties to change the destination of the goods was therefore properly excluded.
XI. It was proper to permit the jury to allow the plaintiff in the discretion of the jury six per cent interest per annum on the value of the property from the time of the conversion. [Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 79; Rivinus v. Langford, 75 Fed. 961;
XII. Appellant also complains as to the admission of certain testimony concerning the value of the meal at the time of its alleged conversion at certain other places than Joliet, but we need not pass on such objection for the reason that the bills of lading themselves provide that the measure of damages is the value of the meal at the time and place of shipment and not of destination. This provision of the bill is valid and binding on the parties. [Georgia F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190; Brockman v. Railway, 195 Mo. App. l. c. 615.]
XIII. From what has been said it is clear there was a case for the jury and, therefore, defendant‘s demurrer to the evidence was properly refused. Other errors are complained of by appellant, including errors in giving and refusing instructions, and that the ver-
The judgment is reversed and the cause remanded for retrial according to the views herein expressed. Ragland, C., concurs; Brown, C., not sitting.
PER CURIAM: — The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All of the judges concur.