Bergman v. The Indianapolis and St. Louis Railroad Company

Citation15 S.W. 992,104 Mo. 7
PartiesBergeman, Appellant, v. The Indianapolis and St. Louis Railroad Company
Decision Date31 March 1891
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Affirmed.

George B. Burnett and George S. Grover for appellant.

The court erred in overruling plaintiff's objection to the introduction of any evidence by defendant, because, from the averments of the answer, it appears that at the time of the delivery of the mules to Grant he was not entitled to possession of them. By the transaction between Grant and Dennis, the latter became invested with the property in the mules and also with the possession. State v. Dennis, 80 Mo. 589. Grant's only right to repossess the mules and the only right defendant had to redeliver them was based upon Grant's right to rescind the sale to Dennis; but the right to rescind depended upon Grant's restoring what he had received on the sale. Thayer v. Turner, 8 Met 551; Ayers v. Hewitt, 14 Me. 281; Fisher v Conant, 3 E. D. Smith, 199; Mason v. Barrett, 3 Denio, 69; Stewart v. Dougherty, 3 Dana, 479; Keteltas v. Fleet, 7 Johns. 324; Kimball v. Cunningham, 4 Mass. 502; Jennings v. Gage, 13 Ill. 610; Estes v. Reynolds, 75 Mo. 563; Bibb v. Means, 61 Mo. 284; Melton v. Smith, 65 Mo. 315. (2) The court admitted improper testimony against the objections of plaintiff. Rodgers v. McCune, 19 Mo. 557; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Aldridge v. Furnace Co., 78 Mo. 559; Scovill v. Glasner, 79 Mo. 449; Chillicothe ex rel. v. Maynard, 80 Mo. 185; Railroad v. O'Brien, 119 U.S. 90. (3) The court gave improper instructions of its own motion and at the instance of defendant. First. The fifth instruction given for the defendant assumes there was evidence before the jury from which they might find that Meyers had knowledge of efforts on the part of Dennis to cheat and defraud Grant, and that Meyers knew the possession of the mules had been obtained by Dennis by fraud and deception, whereas there is not a scintilla of evidence in the record to support such a finding. Fraud is never to be presumed, but must be established by proof. Priest v. Way, 87 Mo. 13. It is error to give instructions upon a theory which has no evidence to support it. Gerren v. Railroad, 60 Mo. 410; Thompson on Charging the Jury, p. 75; Dowling v. Allen, 88 Mo. 293. Second. The fourth instruction given by the court of its own motion announces the proposition that if Meyers knew Dennis had not paid Grant for the mules, and that he was yet indebted to Grant for the purchase price thereof, then plaintiff was not an innocent purchaser of said mules. (4) The court refused to give proper instructions asked by plaintiff. Sawyer v. Railroad, 37 Mo. 241; Muldowney v. Railroad, 32 Ia. 176.

Everett W. Pattison for respondent.

The principles upon which the decision of this case rests may be stated as follows: (1) Where, by the terms of the bill of lading, the vendor makes the property deliverable to his own order, or to his agent, this fact is, when not rebutted by evidence to the contrary, almost decisive to show that it was the intention of the vendor to reserve the jus disponendi, and to prevent the property from passing to the vendee. 1 Benj. on Sales [Corbin's Ed.] 567, and English cases cited, for American cases see section 578; Ogg v. Shuter, L. R. 1 C. P. Div. 47. And for the purposes of this case it makes no difference whether the vendor intends to retain the jus disponendi absolutely, or only so long as the purchaser continues in default. Mirabita v. Bank, L. R. 3 Exch. Div. 164; Brunswick Co. v. Martin Co., 20 Mo.App. 158. (2) If the vendor deals with the bill of lading only to secure the contract price, then the property vests in the buyer upon payment or tender by him of the contract price. 1 Benj. on Sales [Corbin's Ed.] 572, and cases cited in note; also 590; Bank v. Homeyer, 45 Mo. 145, and cases above cited from 3 Exch. and from 20 Mo. App.; Welsh v. Bell, 32 Pa. St. 12. Nor is it necessary that the vendor should declare in express terms that he retains the title. Stone v. Perry, 60 Maine, 48. (3) If the price is not paid, and the buyer has obtained possession of the goods, the vendor may regain the same from the vendee or from anyone claiming under him; and it is not necessary to pay or tender back such portion of the purchase money as the vendor has received. Fleck v. Warner, 25 Kan. 492; Duke v. Shackelford, 56 Miss. 562; Everett v. Hall, 67 Maine, 497; Benj. on Sales [4 Am. Ed.] sec. 429, and cases cited; Robinson v. Baker, 5 Cush. 137. (4) It is only when the vendor gives to the vendee both the possession of the property and the indicia of ownership, that an innocent purchaser for value can hold the property against the original vendor. Leigh v. Railroad, 58 Ala. 165, 176. See, also, McMahon v. Sloan, 12 Pa. St. 233, cited in 1 Benjamin on Sales [Corbin's Ed] 449, in which the possession of the property, as well as of the indicia of ownership, is recognized as essential. (5) If one claims to hold the goods as an innocent purchaser, it is incumbent upon him to show that he actually paid value for the property. Young v. Kellar, 94 Mo. 581; Paul v. Fulton, 20 Mo. 156; Arnholt v. Hartwig, 73 Mo. 485; Jewett v. Palmer, 7 Johns. Ch. 68; Weaver v. Barden, 46 N.Y. 286; Haskins v. Warren, 115 Mass. 514; Paton v. Coit, 5 Mich. 509; Fosdick v. Schall, 99 U.S. 235, 250; 25 L.Ed. 342. (6) The transaction in question was pending during the whole of Sunday, January 14, and the statements of plaintiff's agent made at any time during that day were admissible as part of the res gestoe. Singleton v. Mann, 3 Mo. 464; Bank v. Williams, 46 Mo. 17; Robinson v. Walton, 58 Mo. 384; Leahey v. Railroad, 97 Mo. 165; Boatmen's Ass'n v. Kribben, 48 Mo. 37. (7) There was no error in giving or refusing instructions.

OPINION

Macfarlane, J.

This is a suit against defendant, as a common carrier, to recover the value of twenty-four mules delivered by plaintiff to it, at East St. Louis, on the fourteenth day of January, 1883, to be carried to the city of Baltimore and there delivered to plaintiff, and which it neglected and failed to do; but on the contrary it carried them to the city of Indianapolis, and there wrongfully delivered them to some person unknown to plaintiff.

The answer was a general denial and a special defense substantially as follows:

The mules were the property of Thomas J. Grant, a resident of Randolph county, Missouri; that one John B. Dennis and William Meyers fraudulently conspired to get possession of said mules, and dispose of them; in order to carry out the scheme of fraud, Dennis went to Grant's farm, in Randolph county, and made a contract for the purchase of said mules upon which a small sum in money was paid, and a draft was drawn on McPike & Johnson, commission merchants, in St. Louis, for the balance; the mules were shipped over the Wabash railroad to St. Louis, consigned to McPike & Johnson, under the agreement that they should be delivered to Dennis, upon payment of the draft, but not before; that, on the day after the mules arrived in East St. Louis, Dennis pretended to sell them to Meyers, who was at the time the agent of the plaintiff, engaged in the purchase of mules for him; that Meyers and Dennis fraudulently obtained possession of the mules from McPike & Johnson without paying the draft, and had them shipped over defendant's road, consigned to plaintiff at Baltimore; that upon being advised of these facts, defendant returned the mules from Indianapolis, which point they had reached, and delivered them to Grant at East St. Louis. The reply was a general denial.

The following facts were disclosed by the evidence: Plaintiff, Joseph Bergeman, lived in Baltimore, in Maryland, and had for many years been engaged in buying and selling horses and mules. William Meyers had been his agent in buying mules for fifteen years. McPike & Johnson were live-stock commission merchants at East St. Louis; Dennis lived in St. Louis and had occasionally bought and sold mules on his own account. Grant was a farmer in Randolph county and also bought, fed and sold mules, Dennis had, previous to January, 1883, on two or three occasions bought small lots of mules from Grant. Dennis was also known to Meyers and McPike & Johnson. On about the twelfth of January, 1883, Dennis went to Grant's home and proposed purchasing twenty-four mules he then had for sale. After some negotiations the price was agreed upon. During the negotiations Dennis spoke of wishing to buy such mules as would suit Meyers. Dennis told Grant that the money was deposited with McPike & Johnson to pay for the mules; that Meyers had deposited it. Dennis paid $ 80 in cash, and gave his draft on McPike & Johnson for balance, $ 3,248. The mules were loaded into a car and a receipt or bill of lading of the company was taken which recited that Grant had shipped to McPike & Johnson twenty-four head of mules.

Grant then sent the draft and bill of lading by mail to McPike & Johnson, with the following letter, after the date and address:

"I inclose you a draft for $ 3,248, which you will please honor by sending check to me to Randolph Bank at Moberly. The draft is for twenty-four mules sold to John B. Dennis."

The mules were forwarded Friday night, the thirteenth. The draft and letter were not mailed until the next day. After the mules had been loaded, Dennis asked Grant for a statement showing what had been paid for the mules, in order that Meyers would know he was not putting up a job on him. Thereupon Grant gave him the following statement, addressed to McPike & Johnson:

"I have this day sold John B. Dennis twenty-four head of mules for $ 140 a head."

The mules were delivered to...

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