177 Mo. App. 611 | Mo. Ct. App. | 1913
This is a suit in trover as for conversion. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff’s son was unable to dispose of the hay on arriving at Harriman and thereupon arranged to ship it to Knoxville, Tennessee, for market there. To effectuate this purpose, plaintiff’s son surrendered the three bills of lading for the several cars to the Cincinnati, New Orleans & Texas Pacific Railway Company at Harriman, and entered into a new shipping contract with that company for the transportation of the hay to Knoxville, Tennessee. It appears that there had then accrued on the original shipment from Herrick, Illinois, to Harriman, Tennessee, $225 in freight charges, which, it is said, the carrier advanced toward effectuating the new shipment from Harriman to Knoxville. At any rate plaintiff took up the draft and the bills of lading attached thereto, and his‘son, with full authority in that behalf, surrendered the latter to the Cincinnati,
This latter or second shipment of the hay was made on November 23, 1907, and it appears the hay reached Knoxville via. the defendant Southern Railway Company, connecting and final carrier, on November 30. The bills of lading under the second shipment and the draft attached thereto failed to come forward promptly, and plaintiff’s brokers, R. K. Gibson & Company, before receiving the bills of lading, and, it is said, without knowledge of the draft annexed, called upon defendant Southern Railway Company for a delivery of the hay. Defendant delivered the hay to R. K, Gibson & Company without a surrender of the bills of lading therefor, and this suit proceeds against the latter carrier, as for the conversion of the hay, because of that fact. The hay appeared to be comewhat under grade and of poor quality. Because of this fact R. K. Gibson & Company, the brokers, had difficulty in disposing of it, but finally sold it to the firm of Lewis & Leonhardt, dealers in like commodities, under an arrangement whereby the latter firm was to deduct an account of $59.58 which plaintiff owed to them on some prior dealings. The hay was sold by the brokerage company to Lewis Leonhardt at $13 per ton, which amounted to the sum total $375.54 for the three
This was about the first of December, and about January 20 following, R. K. Gibson .& Company sent plaintiff a statement of the account, together with a check for $18.96 as the balance due him on the transaction. However, a few days after defendant Southern Railway Company delivered the hay to R. K. Gibson & Company and the latter sold it, the draft for $250, together -with the three bills of lading annexed thereto, was presented to R. K. Gibson & Company through the instrumentality of a Knoxville bank. But Gibson & Company declined to pay the draft and it was returned to plaintiff’s banker at Nokomis, Illinois. Thereafter plaintiff repaid his banker the $250 advanced to him on the bills of lading and took up the draft together with the hills of lading attached. At the time R. K. Gibson & Company, brokers—that is, on January 20—mailed plaintiff a statement of the account and a check for $18.96, payable to plaintiff, they transmitted to him as a part of the settlement receipted freight bills showing a payment of all of the freight charges against the shipment, that is to say, a receipted freight bill showing a payment of $225 accrued and advanced at Harriman, Tennessee, and likewise a payment of seventy-two dollars freight from Harriman to Knoxville. It appears that, though plaintiff retained the receipted freight hills, he wrote to his brokers R. K. Gibson'& Company, objecting to the settlement and insisting that the freight was too high. Moreover, he insisted that a few dollars more was due him on account of an error in the
(after stating the facts).—Though plaintiff negotiated the bills of lading to his banker, it appears the title to the hay resides in him at the present time, for, upon the dishonor of the draft, he paid the same and took up the bills of lading annexed thereto'. It is entirely clear that defendant Southern Railway Company is guilty of a conversion of the hay, for that it exercised dominion over the same, without right whatever thereto, in making an unauthorized delivery. [See 1 Hutchison on Carriers- (3 Ed.), Sec. 26.] No circumstances of fraud, imposition or mistake will excuse the common carrier for a delivery to the wrong person. However justifiable the delivery may seem to be, the law'exacts of the carrier absolute certainty that
But though such be true, plaintiff is not entitled to recover, if it appears conclusively that he has ratified the unauthorized act of his brokers through accepting and retaining a part or all of the benefits of the transaction. It is true R. K. Gibson & Company were not entitled to possession of the hay until they had first paid the draft and taken up the bills of landing for presentment to the defendant, for the consignment was made to plaintiff, that is ‘ ‘ shipper’s order, ’ ’ and not to them unconditionally. However, upon obtaining* possession of the hay, the brokers, it seems, sought to dispose of it as best they could, in view of its inferior quality and to the best advantage of plaintiff, the owner.
There can be do doubt that the carrier has a lien on the goods for their carriage and for such advances as he has been required to make for the owner in order to further their transportation. [See 2 Hutchinson on Carriers (3 Ed.), Secs. 864, 865.] The evidence is conclusive that the freight was charged against and as plaintiff’s witness says “followed” the shipment; moreover, the evidence reveals conclusively that these three cars had charged against them, by way of freight advanced at Harriman, $225. This amount of freight charges it appears had accrued and existed against the shipment as a lien for freight when the new or second consignment was made there, through the act of plaintiff’s son in surrendering the original bills of lading and taking new ones which provided for a routing to Knoxville over defendant, Southern Railway, as the connecting and final carrier. This amount was paid by the brokers as freight charges and receipted bills therefor furnished to plaintiff. The freight so accrued between Herrick, Illinois, and Harriman, Tennessee, was incident to the first transaction—that is, the shipment of the hay under the first or prior bills of lading. The second shipment from Harriman to Knoxville was under an entirely new agreement, evidenced by three separate bills of lading then issued upon the surrender of the prior ones. It is under the latter shipment alone that defendant came into possession of the hay, and as final carrier was authorized to collect the full freight, including the amount accrued at Harriman, for the evidence is uniform and not denied that such amount was
The bills of lading issued at Harriman covering the second shipment contain a special contract incorporated in clause ten thereof, to the effect that in event of loss, the measure of recovery therefor should be the value of the hay at the time and place of shipment— that is, at Harriman. In this suit, plaintiff invokes the measure of recovery thus prescribed, and seeks the full value of the hay at Harriman at the time of shipment. It may be that, because of defendant’s conversion, and in view of the stipulation in clause ten of 'the bills of lading issued at Harriman, providing that, in event of the loss of the hay, its value should be assessed at the time and place of the shipment, plaintiff is not liable for the freight charge from Harriman to Knoxville, as, in those circumstances, his claim for compensation would probably be first of that charge. But though such be true, notwithstanding the carrier’s lien for freight, the amount so paid by the brokers for carriage to Harriman, Tennessee, $225, was a valid and subsisting claim against plaintiff in favor of the carrier and for which he was personally liable in a suit at law, and this, too, independent of the freight lien. [See 2 Hutchinson on Carriers (3 Ed.), Sec. 799.] This charge was a valid and subsisting indebtedness against plaintiff prior to and at the time the second shipment was made at Harriman. The mere fact that the carrier subsequently surrendered its claim to seventy-two dollars, additional freight, which plaintiff declined and by a readjustment under its through rating gave the shipment the benefit of through transportation to Knoxville for $225 is without influence in the case, for the evidence is clear that such was the-rate charged and the amount accrued for transportation to Harriman. It is certain that $225 of freight charges had accrued on the shipment of
Having accepted from his brokers, to whom the wrongful delivery was made, so much of the proceeds of the consignment as were applied in liquidation of the obligation of freight accrued against him at Harriman —that is, before the second shipment was made—plaintiff is estopped to proceed as for the conversion against defendant with a view of recovering the full value of the hay at the time and place of shipment — that is, Harriman—wholly relieved from all freight charges, and must be treated as having ratified the otherwise wrongful delivery. In this view, the judgment should be reversed. It is so ordered.