167 Mo. App. 286 | Mo. Ct. App. | 1912
This is a suit in conversion. At the conclusion of all of the evidence, the court peremptorily directed a verdict for defendant, and judgment was given accordingly.' Prom this judgment plaintiff prosecutes the appeal.
The petition contains twenty-one counts and in each count a recovery is sought for coal laden in cars at the mines of the Bessemer Washed Coal Company on defendant’s railroad. Plaintiff, an incorporated company, owns and operates a large manufacturing establishment in St. Louis at which it consumes about two ears of coal per day. It appears that on June 17, 1909, plaintiff enteréd into a written contract with, the Bessemer Washed Coal Company whereby it contracted to purchase, in accordance witlr the terms of such contract, all of the coal it required to operate its factory, and the Bessemer Washed Coal Company agreed to deliver such coal to plaintiff on the sidetrack at its factory at Third and Convent streets in the city of St. Louis. This contract was subsequently modified, however, with respect to the point of delivery, and as modified provided for delivery to be made f. o. b. cars at the mines of the Bessemer Washed Coal Company. The contract, by its terms, continued in force for one year from July 1, 19091.
Some three months after-plaintiff’s contract was made, defendant railroad company entered into a written contract with the'Bessemer Washed Coal Company, whereby the coal company obligated itself to deliver to the railroad company not less than twenty-two nor exceeding forty-four cars of coal each-day at
During the months of January and February, the coal company loaded a large number of cars of coal at its mines on defendant’s railroad, in accordance with the modified contract, for plaintiff and sought to bill the same to it, but the defendant railroad company’s agent at the mines, acting under instructions from defendant’s general officers, billed all of these cars of coal to the railroad company as if it had been tendered by the coal company under its contract with the railroad company. Though the coal company protested at the time and insisted on billing the coal-to plaintiff, it afterwards acquiesced in the conduct of the railroad company and accepted payment from it for all -of the coal involved here. Plaintiff prosecutes the suit against the railroad company for conversion of the coal as if the coal were its property at the time the railroad appropriated it upon its contract.
No one can doubt that, to sustain this suit in conversion, it devolved upon plaintiff to show that it owned the coal, that is to say, that the title thereto
Plaintiff relies upon the case of Blackmer v. Cleveland, C. C. & St. L. R. Co., 101 Mo. App. 557, 73 S. W. 913, but that authority is’ not in point, for there the contract of sale appeared to be one which reserved no right of inspection and rejection in the purchaser, and it was competent for the jury to find the sale was completed and the coal accepted by the act of delivery to the carrier, on the theory that such carrier was the purchaser’s agent. Prom what appears in that case, the contract here involved is entirely dissimilar. The judgment should be affirmed. It is so ordered.