120 Mo. App. 135 | Mo. Ct. App. | 1906
Plaintiff, a merchant at Columbia, sues to recover the value of a case of dry goods which he claims defendant, as a common carrier, received for hire for transportation and delivery to him at Columbia and failed to deliver. A jury was waived and the court sitting as a jury heard the evidence and gave plaintiff judgment for the value of the goods. Defendant appealed. Plaintiff’s ownership of the goods, their description and value, their shipment at New York consigned to plaintiff, and their delivery to defendant in the course of transportation, are all conceded facts. The controversy between the parties relates to the fact of the delivery to plaintiff at Columbia. It appears that the shipment received by defendant consisted of six cases of dry goods consigned to plaintiff. Defendant’s records show that all of them were carried to its station at Columbia and there delivered together to plain
Counsel for plaintiff admit that Hulett was his agent authorized to receive and receipt for the case and that, if.it was in fact- delivered to Hulett, “that was just as valid as a delivery to the owner himself,” and further they concede that the receipt given by Hulett “is prima facie evidence that such delivery was made.” With the case in this posture, obviously the burden is on plaintiff to overcome the prima facie proof of delivery made by defendant in the production of the receipt signed by the agent of plaintiff. This burden plaintiff assumed and in attempting to meet it introduced evidence tending to establish the following facts:
Hulett did not attend in person to the hauling of
From the testimony of one of the sales clerks: “Q. State if the goods in these three bills ever arrived at your store. A. Not to my knowledge. They never were in the stock. I kept that stock. Q. You were in the store every day during that time. A. Yes, sir. Q. If such a box containing these goods were
Defendant asked and the court refused to give an instruction in the nature of a demurrer to the evidence, and then asked and the court gave declarations of law, from which we quote; “Unless the plaintiff has established to vour satisfaction by the evidence in the case that the giving of the said receipt and the payment of the freight charges by the said Hulett was a mistake and unless the giving of said receipt and the payment of said charges are satisfactorily explained and are shown to have been through error or mistake, the same become conclusive evidence of the delivery of said goods; . . . in order to overcome the effect of such receipt, it is necessary that there should be evidence sufficient to convince you that the said receipt was given by mistake, and in reaching your conclusion upon that subject you are not authorized to indulge in any mere speculation or possibilities, but must have substantial evidence sufficient to satisfy you that the said case was not delivered and that the receipt was signed by mistake; . . . the mere fact that the plaintiff may not have received the case of goods is not sufficient evidence to establish the further fact that the same was not delivered to the said Hulett as the agent of plaintiff; . . . such fact (i. e., the non-delivery of the case to plaintiff) is only one of the circumstances that may be considered in reaching your conclusion in this case and, in the absence of other evidence tending' to establish the non-delivery by the defendant to Hulett, the failure of Hulett to deliver the case of goods to the plaintiff does not relieve the plaintiff from the effect of the written receipt given by Hulett, and under such circumstance and in the absence of such evidence of non-delivery to Hulett, your finding must be for the defendant” (the italicized words were interpolated by the court).
No declarations of law were asked by plaintiff.
The receipt given by the authorized agent of plaintiff, containing, as it does, an admission of the fact of the delivery of the case of goods, to the agent is prima facie evidence of the verity of the recited fact. It is evidence of a high character because it is an admission against interest, but it belongs to the class denominated non-contractual admissions and therefore is open to explanation or contradiction by parol or by any other competent evidence. [Weatherford v. Farrar, 18 Mo. 474; State ex rel. v. Branch, 112 Mo. 661; Cardwell v. Stuart, 92 Mo. App. 586; State ex rel. v. Cummiskey, 34 Mo. App. 189; Quattrochi Bros. v. Bank, 89 Mo. App. 500; 23 Am. and Eng. Ency. of Law (2 Ed.), 983, et seq.; 2 Wharton on Evidence, secs. 920, 1064, 1130, 1365; 2 Parsons on Contracts (9 Ed.), 709; Wigmore on Evidence, sec. 2432; Van Zile on Bailments and Carriers, sec. 452.]
The trial court, having before it clear and satisfying evidence tending to impeach the verity of the receipt, properly overruled the demurrer to the evidence.