Missouri Pacific Railway Co. v. McLiney

32 Mo. App. 166 | Mo. Ct. App. | 1888

Ramsay, J.

— I. The court properly overruled defendant’s demurrer to plaintiff ’s'petition. It was general in its character and was directed at the petition as a whole. If either count of the petition stated a good cause of action, it was the duty of the court to sustain the cause of action thus stated. Roberts v. Walker, 82 Mo. 200. Had defendant filed a separate demurrer to the two first counts of the plaintiff ’ s petition, the trial court, probably, would have sustained them. At least a different question would have been presented to this court. The third count set forth in the foregoing statement, we think states a good cause •of action.

II. The evidence fully sustained the allegations of this count of the petition, which is of the nature of an action for money had and received, and is not based upon non-jnotested drafts, as contended for by appellant’s counsel. When W. J. Ayers endorsed and delivered the bill of lading, which covered his shipment of flour, for value to J. H. Bacon, he parted with all of his right, title and interest in and to the flour, as effectually as if he had delivered the flour directly to Bacon. “ Bills of lading, by the law merchant, are representatives of the property for which they have been given, and the endorsement "and delivery of a bill of lading transfers the property from the vendor to the vendee, is a complete legal delivery of the goods, divests the vendor’s lien.” Benjamin on Sales, sec. 813 ; Skilling v. Bollman, 73 Mo. 665. Therefore, leaving out of sight the drafts, when Bacon received the bill of lading he became the owner and shipper of the flour. It was subject to his order and could be delivered to or withheld from the consignee named in the bill of lading as he might direct. Allen v. Williams, 12 Pick. 297; Buffington v. Curtis, 15 Mass. 528. When Bacon assigned and delivered it to the First National Bank at Fort Scott, that bank was possessed of like rights and like x>owers. The mere fact that the First National Bank failed to properly protest the drafts did not affect its right to the flour, or to the proceeds arising from, a sale thereof. It yet retained ownership in the flour, and if Ayers was released from liability upon the drafts (which is conceded) by reason of the bank’s failure to have them protested, then he could have had not even a contingent interest in the flour shipped, yet the evidence is that he received $476.50, the proceeds arising from the sale. Indeed he admits this. The bank, on his refusal to pay over this money, could have collected the same of him by suit. “ Whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged, by the ties of natural justice and equity, to refund, the action for money had and received may be maintained;” Cary v. Curtis, 3 How. (U. S.) 236; Krentz v. Livingston, 15 Cal. 344; Tutt v. Ide, 3 Blatch. 249; Bullard v. Hascall, 25 Mich. 132; 4 Wait’s Actions and Defenses, 469, et seq. The First National Bank having this right or chose in action, under our law as now construed, could assign it to plaintiff, and thereby enable plaintiff to maintain such suit. Snyder v. Railroad, 86 Mo. 613; Hamlin v. Carruthers, 19 Mo. App. 567.

The closing paragraph of the decision in case of Adams v. Darby & Barksdale, 28 Mo. loc cit. 166, is not in conflict with views herein expressed. It may be that the bank having failed to have its drafts duly protested would not only lose a right of action upon the drafts, but could not sue for the original consideration it paid in first instance for them. We can see why this should be. Neither the bank nor its assignee is here suing for the first consideration received by Ayers for the drafts, when he negotiated them, but plaintiff is suing for the $476.50 received by him from the consignees in Texas, which he ought to have immediately paid over to the party holding the bill of lading.

The judgment below was for the right party. It is, therefore, affirmed.

All concur.