Fischer v. Merchants' Dispatch Transp. Co.

Decision Date02 January 1883
Citation13 Mo.App. 133
PartiesHUGO FISCHER, Respondent, v. MERCHANTS' DISPATCH TRANSPORTATION COMPANY, Appellant.
CourtMissouri Court of Appeals

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

S. M. BRECKINRIDGE, with whom is M. F. WATTS, for the appellant: The only contract between plaintiff and defendant was the one in writing: and when that was shown to exist, all evidence as to what was said between the parties at the time the contract was executed, was improper.-- Murdock v. Ganahl, 47 Mo. 135; O'Bryan v. Kinney, 74 Mo. 125. The instructions are conflicting and inconsistent.-- Modisett v. McPike, 74 Mo. 648 (affirming Thomas v. Bobb, 45 Mo. 384); Kernocher v. O'Bannon, 56 Mo. 289.

P. E. BLAND and C. A. SCHNAKE, for the respondent: The question being one of interpretation, all the surrounding facts which throw light on the sense in which the words of the writing were used are admissible.-- Blossom v. Griffin, 13 N. Y. 569; Myrick v. Railroad Co., 9 Biss. 44. No error in giving instructions is fatal unless the jury has been misled by it.-- Levering v. Schnell, 8 Mo. App. 589; Loefler v. Keokuk Northern Line, 7 Mo. App. 185; Semple v. Dennis, 7 Mo. App. 595. This is the rule, where the error consists in the giving of an erroneous instruction, at the instance of the respondent, conflicting with a sound instruction, given at the instance of the appellant.-- Pratt v. Cabanne, 12 Mo. 194; Severingen v. Orne, 8 Mo. 707; Haskings v. Railroad Co., 58 Mo. 307; Crutchfield v. Railroad Co., 64 Mo. 255. The rule is otherwise where an erroneous instruction is given at the instance of the party prevailing, and a sound, or even an unsound, one is given at the instance of the losing party, conflicting with the former instruction.-- Simmons v. Carrier, 60 Mo. 581, 583, 585; Davis v. Brown, 67 Mo. 313.

BAKEWELL, J., delivered the opinion of the court.

The petition alleges that defendant is a common carrier, and in August, 1874, agreed to carry for plaintiff from St. Louis to New York, a certain amount of gold coin, and therewith to pay the import duty upon some laces and silks belonging to plaintiff, and then to receive these laces from the custom house and carry them to St. Louis and deliver the same to plaintiff at St. Louis, upon payment of its reasonable charges; that defendant received the goods in good order at New York, and was paid its charges for carriage; but that, whilst in possession of defendant several packages of lace were abstracted from the package and lost to plaintiff. The petition charges defendant with failure to perform its duty as a carrier, and asks judgment for the value of the missing goods. The answer was a general denial; and the verdict and judgment were for the plaintiff.

Plaintiff testified on his own behalf to the effect that, in August, 1874, he handed to defendant's agent in St. Louis $250 in gold, with which to pay custom house charges on some laces and silks belonging to plaintiff. These goods plaintiff brought with him as a passenger from London to New York. At New York, the carpet bag in which they were contained was opened and the goods were inspected by the revenue officers. The goods were then replaced in the carpet bag, which was then locked and strapped and left in possession of the revenue officers. Witness then gave a conversation between himself and defendant's agent in St. Louis, to the effect that the agent said that the company would send the money to New York and bring on the goods to plaintiff in St. Louis. This was excluded by the court, on the ground that there appeared to be some written agreement between the parties. Afterwards, against defendant's objection, plaintiff was permitted to state that the agent said he would charge first-class freight rates; that the satchel which had contained the goods was delivered to plaintiff in St. Louis on August 22, 1874, by an expressman, who presented and collected a bill made out in favor of defendant, part of which was for defendant's charges, and part for an advance by defendant on account of deficiency in the weight of the gold sent to New York. At the time he received the satchel, it was not in the condition in which plaintiff had left it in New York. It was locked; but the straps were unbuckled, and one of them gone; and a hand could be inserted where the strap had been. On opening the satchel in the presence of the expressman, the laces in question, the value of which is shown, were found not to be there. Afterwards, defendant's agent said he would inquire about it, and subsequently told plaintiff that defendant did not carry anything but large freight, and had delivered the satchel to another company for transportation.

No other witness was examined for plaintiff. In his testimony plaintiff had identified the following written instrument:--

“Merchants' Dispatch Transportation Company. Fast freight line. Office, No. 314 N. Third Street. O. R. Morse, agent. St. Louis, August 12, 1874. $232.50, gold. Received from Hugo Fischer, two hundred and thirty-two 50/100 dollars, gold, same being for duties on one package goods in N. Y. Custom House to be forwarded by M. D. T. Co. Gold sent to W. F. Staunton, secretary. O. R. Morse, agent.”

Defendent then introduced testimony to the effect that on August 15th the cashier of defendant in New York received, through the American Express Company, a package of gold from defendant's agent in St. Louis, which was of light weight and was sold for less than its...

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3 cases
  • Eckles v. Missouri Pacific Railway Co.
    • United States
    • Missouri Court of Appeals
    • 18 april 1905
    ... ... 69, 28 S.W. 965; Lin v ... Railroad, 10 Mo.App. 125; Fischer v. Transportation ... Co., 13 Mo.App. 133; Baltimore & Ohio Steamboat ... ...
  • Eckles v. Missouri Pac. Ry. Co.
    • United States
    • Missouri Court of Appeals
    • 18 april 1905
    ...of the goods. Davis v. Jacksonville Southeastern Line, 126 Mo. 69, 28 S. W. 965; Lin v. Railroad, 10 Mo. App. 125; Fischer v. Transportation Co., 13 Mo. App. 133; Baltimore & P. Steamboat Co. v. Brown, 54 Pa. 77; Jennings v. Railway, 127 N. Y. 438, 28 N. E. 394; Atlanta & West Point R. Co. ......
  • Schwabacher v. Kane
    • United States
    • Missouri Court of Appeals
    • 2 januari 1883

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