226 S.W. 582 | Mo. Ct. App. | 1920
By this suit plaintiff seeks to recover one thousand dollars damages for that defendant, a common carrier, delivered to the consignee a C.O.D. shipment of eggs without collecting that amount from the consignee as required by the terms of the shipping contract. The plaintiff was doing business at Rolla, Missouri, and there delivered to defendant fifty-seven cases of eggs to be transported and delivered to John B. Tyler Company at Chicago under a contract requiring defendant to collect for plaintiff one thousand dollars on delivery of such eggs. The defendant admits receiving the eggs under the C.O.D. contract mentioned; that it transported the eggs as required and delivered same to the consignee without collecting the specified amount. Its only defense is that while it failed to collect from the consignee the sum of one thousand dollars as it should have done, yet the consignee made payment in full for such eggs direct to plaintiff and plaintiff accepted such payment — hence no damage was suffered by plaintiff.
The plaintiff denied such payment and at the trial sought to show that the money paid by the consignee, Tyler Company, which defendant claims it paid plaintiff for the eggs in question, was in truth and in fact due and owing by Tyler Company to plaintiff on prior transactions and was merely a payment on an open account on which was due more than the amount in controversy. The evidence disclosed, however, that the only prior indebtedness claimed by plaintiff as due it from Tyler Company was an unliquidated and disputed claim for damages for that Tyler Company substituted inferior eggs for eggs which that company was handling in cold storage for plaintiff. While plaintiff and Tyler Company had been doing business with each other for a *650 long time and many shipments of butter and eggs had been made by plaintiff to Tyler Company on commission or outright sale, yet all such transactions which had formed the book account of either party had been settled and paid before the shipment of the eggs now in controversy. The prior indebtedness, if any, of Tyler Company to plaintiff was for unliquidated damages growing out of tort rather than contract and never appeared in the book account which showed the merchandise sold or consigned by plaintiff to Tyler Company and payments made thereon.
The case was tried by a referee whose finding for the defendant was approved by the trial court and the first point raised by plaintiff's appeal is that the court erred in making a compulsory reference of the case over plaintiff's objections. It is very doubtful if this case was a proper one for compulsory reference (Elks Investment Co. v. Jones, 187 S.W. 71), but if the judgment is for the right party and is the only judgment permissible under the facts, then such error is harmless. Had the case been tried by a jury and the court at the close of the evidence had rightfully directed a verdict for defendant the result would be the same and plaintiff is not harmed by the method of trial.
A careful consideration of the case convinces us that the evidence, largely documentary and practically undisputed, shows that plaintiff received and accepted payment for the eggs in question direct from Tyler Company, the consignee. We need not discuss at length the nature of the liability incurred by a carrier who delivers goods to the consignee without collecting the amount specified in the C.O.D. contract. Even if such carrier can be sued in conversion as some authorities hold the obligation arises from contract and the amount of recovery is the contract amount and not the value of the property. [Fowler Com. Co. v. Railroad,
The evidence we think conclusively shows a payment for these eggs by the consignee Tyler Company to the plaintiff. The fifty-seven cases of eggs in question were a part of a purchase of one hundred cases by Tyler Company at 62½ cents per case, the other forty-three cases being shipped by freight. The shipment by express now in question was delivered to Tyler
Company January 10, 1919. The value was $10.50 less express charges of $52.54. Plaintiff had drawn a draft for $775 on Tyler Company which it paid, leaving a balance due plaintiff of $222.46. An itemized statement of this transaction was sent to plaintiff on January 13, 1919. This statement was short one case of eggs, lost in transit, and defendant tendered in court the value of the shortage. The freight shipment of forty-three cases was received by Tyler Company January 16, 1919, the net proceeds of which amounted to $702.29, making Tyler Company then indebted to plaintiff $924.75. On January 22, 1919, plaintiff made another shipment of butter and eggs to Tyler
Company amounting to $1225.72, making the total indebtedness $2150.47. Tyler Company paid this balance by paying a draft for $1200 drawn by plaintiff, charge for freight, etc., $55.34, and by sending plaintiff their check for $895.13, which plaintiff received and cashed. This check was accompanied by an itemized statement showing the items of debit and credit on the shipments of eggs and butter to Tyler Company, including the eggs now in controversy, and the check covered *652
the balance due on such account. The plaintiff in receiving this check and the statement accompanying it was informed and knew that the check then received paid the balance due it on the three shipments of merchandise made in January, 1910, to Tyler
Company, one of which shipments was the fifty-seven cases of eggs now in controversy. The plaintiff at that time had only an indefinite claim for damages growing out of the eggs handled in cold storage during the previous summer and knew that Tyler
Company were disputing any such claim. Tyler Company had a right to designate on what items they were making payment, even if other items were owing by them to plaintiff. [21 R.C.L., pp. 88 and 112; Beck v. Haas,
Farrington and Bradley, JJ., concur. *653
