Thomas v. Pacific Express Co.

• Citation: 30 Mo.App. 86
• Parties: WILLIAM THOMAS, Respondent, v. PACIFIC EXPRESS COMPANY, Appellant.
• Decision Date: 27 March 1888
• Court: Court of Appeal of Missouri (US)

30 Mo.App. 86

WILLIAM THOMAS, Respondent, v. PACIFIC EXPRESS COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

APPEAL from the St. Louis Circuit Court, HON. JAMES A. SEDDON Judge.

Affirmed.

DAVIS & DAVIS, for the appellant: The moment the package was ordered returned to the consignor he occupied the position of consignee of the package. Express companies are different from banks in this, that the latter can choose their customers. Bank v. Ginocchio, 27 Mo.App. 661. It is incident to every corporation to enact by-laws or statutes for the control and conduct of its business generally. Redfield on Railways [6 Ed.] 82, *88.

LODGE & TALTY, for the respondent: A refusal to deliver up a chattel without a lawful excuse amounts to a conversion. Huxley v. Hartzell, 44 Mo. 372; O'Donoghue v. Corby, 22 Mo. 393; State to use v. Berning, 74 Mo. 95; Neiswanger v. Sneer, 73 Mo. 192. The appellant had no lawful excuse for refusing to deliver the goods to respondent. It signed and delivered to respondent a written contract. In it nothing whatever is said about identification of the consignee even. It is " the best evidence of his contract with the company." Davis v Railroad, 53 Mo. 320; McGinniss v. Railroad, 21 Mo.App. 399; Miller v. Dunlap, 22 Mo.App. 97. The return of the goods to respondent did not make him a consignee. When appellant found it could not deliver the goods " it then became its duty to notify the consignor and return the goods to him." Redfield on Carriers secs. 55, 61; Cramer v. Exp. Co., 56 Mo. 524, and cases cited; Lesinsky v. Dispatch Co., 13 Mo.App. 575. There is not one word of evidence in the record going to show that respondent had any notice or knowledge of this so-called rule at or prior to the date of the contract. Nor does it appear that appellant, at any time, explained to him about the same. Nor did it show how long the rule had been in force, consequently it did not show that it was so notorious, universal, and well established that his knowledge of it would be conclusively presumed. Brown v. Strimple, 21 Mo.App. 342; Walsh v. Trans. Co., 52 Mo. 438; Coquard v. Bank, 12 Mo.App. 266. And " a custom, however well established, can never be permitted to prevail so as to make the rights and liabilities of parties other than they are at law." Ober v. Carson, 62 Mo. 210.

OPINION

PEERS J.

This action was begun before a justice of the peace in the city of St. Louis upon the following statement:

" Plaintiff states that defendant is, and at the times hereinafter stated was, a corporation; that the plaintiff is, and at the times hereinafter stated was, the owner and entitled to the possession of the following specific personal property, to-wit, one silk dress of the value of forty-nine dollars, one pair of hose of the value of fifty cents, and one pair of gloves of the value of fifty cents; and that plaintiff being so the owner of said personal property, defendant converted said property to its own use, to-wit, on the twenty-eighth day of February, 1887. Wherefore plaintiff prays judgment for fifty dollars and costs."

On the twentieth day of March, 1887, this cause was heard in the justice's court and a judgment rendered for the plaintiff for the amount sued for. From this judgment the appellant appealed, and on the ninth day of November, 1887, the case came on for trial in the circuit court, and was heard by the court sitting as a jury, where again the issues joined were found in favor of respondent. Appellant filed its motion for a new trial, which being overruled, it brings the case here by appeal.

The evidence shows that, on the fourteenth day of December, 1886 the defendant received the goods sued for from plaintiff to forward to Sandy Point, Texas, a place where neither the defendant nor its connecting lines had an office, receiving as a consideration therefor the sum of seventy cents, and giving respondent a written contract or receipt acknowledging the receipt of the goods; that the goods were received at, and this contract issued from, the office of the appellant, near the corner of Thirteenth and Poplar streets, in the city of St. Louis, by appellant's agent in charge of that office; that about one month thereafter respondent called and informed this agent that the goods had not been delivered at their destination, and was by him instructed to go to appellant's office on Fourth and St. Charles streets, that being the return office. Respondent did so and the clerk in charge ordered the goods returned on January 31, 1887, being a month and a half after appellant had received them. Respondent was informed that the goods would be returned in two or three days, at the end of which time he called for them, and called a second time, when he was told they would be ordered returned again, which was done on February 14, 1887; that when they were returned respondent was notified to call for them, which he did at once, exhibiting his receipt given to him when he shipped the goods, and after being shown the goods said they were his and he would...