13 Mo. App. 81 | Mo. Ct. App. | 1882
delivered the. opinion of the court.
This is an action against a common carrier for damages for del a}7 in shipping goods which were consigned to the firm of which the plaintiff was a member, for sale and account. The plaintiff had a verdict and judgment .for $800. We shall consider separately the substantial questions to which our attention is invited : —
It is claimed that the court erred in overruling a motion to strike out certain parts of the plaintiff’s reply. The first bill of exceptions shows that the defendant made such a motion, and that it was overruled ; but it does not state what parts of the reply it was moved to strike out. What purports to have been the motion is copied at length into the transcript by-the clerk ; but this we cannot notice, for any purpose, without disregarding a rule of practice which has long been settled and constantly acted upon by the supreme court and by this court. Jefferson City v. Opel, 67 Mo. 394. As the purport of this motion is not, therefore, properly brought to our attention, we must presume that the court rightly overruled it.
The usual running time between Dorsey and East St. Louis was two hours. The apples were detained by the defendant at Dorsey for six days ; but evidence was offered and excluded which tended to show that this was done at the request of J. D. Ober & Co. The apples were winter apples, and good keepers. Holes were cut in the barrels for ventilation, and the evidence tends to show that if they had been forwarded promptly, they would have arrived at Little Rock in good condition, and would have fetched, in that market, from $3.25 to $4.25 per barrel. The weather was warm, and before they left Dorsey, they had begun to rot. They left Dorsey on the 9th of October, and arrived at Little Rock eight days afterwards, in a greatly damaged condition. After being sorted and culled over so as to make them marketable, they were sold by W. A. Ober & Co. for $412.65 gross.
In our opinion, the statement of these facts, which we need not further elaborate, shows a clear liability on the part of the defendants to the plaintiff for the damages caused to W. A. Ober & Co. by this delay of these defend
Thus, in the present case, when W. A. Ober & Co. paid the draft and received the bill of lading, there was a constructive delivery of the goods to them, and they became the full legal owners of them. But beyond the amount of their advances and commissions, they were not the equitable or beneficial owners, but J. D. Ober & Co., the consignors, were. Now, the defendant offered evidence tending to show that the delay which caused the injury to these goods was due to the act of the defendant’s agent in complying with a request of J. D. Ober & Co., to hold the goods at Dorsey until through cars could be procured on the Iron Mountain Railroad. This the court excluded, and we think erroneously. If this were the fact, it would be clearly inequitable to allow the plaintiff to recover any damages in excess of the interest of W. A. Ober & Co. in the goods, since any damages in excess of this would go to J. D. Ober & Co., and they would thus be allowed to derive an advantage from their own wrong.
The result produced by the ruling of the court in excluding this evidence, may be thus stated. The petition states the value of the apples to have been $1,400. The plaintiff’s testimony shows that his firm advanced $450, the amount of the draft; $214 for freight, $15 for dray-age, and $33.65 for assorting, etc., making a total advance of $712.65 ; that they realized from the sale of the apples $412.65, which would leave them short on their advances, $300. As the amount to which they were entitled by way