R. C. Stone Milling Co. v. McWilliams
| Decision Date | 22 December 1906 |
| Citation | 98 S.W. 828,121 Mo.App. 319 |
| Parties | R. C. STONE MILLING COMPANY, Appellant, v. McWILLIAMS et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.
AFFIRMED.
STATEMENT.--This action is to recover seven hundred and seven dollars and seventy-two cents, the value of ten hundred and fifteen bushels of wheat, alleged to have been embezzled and converted by defendants. An attachment in aid of the suit was issued on an affidavit alleging: "This action is brought for injuries arising from the commission of a felony by the defendants, in this, that defendants embezzled and converted to their own use the property of plaintiff, to the value of seven hundred and seven dollars and seventy-two cents." A plea in abatement to the attachment was filed and the issues raised thereby were tried to a jury, resulting in a verdict for defendants. Plaintiff recovered judgment on the merits of the action, and the appeal is from the verdict and judgment on the plea in abatement.
Defendants are partners and operate a small mill at Wentworth, Missouri. Plaintiff operated several mills in southwest Missouri, one at Republic. In November, 1900, the parties entered into an agreement whereby defendants were to buy wheat at Wentworth for plaintiff and ship as directed. Plaintiff, in advance of purchases, signed blank checks and delivered them to defendants with authority to fill them out and deliver them in payment for wheat as needed. Defendants were furnished blanks on which they made daily reports of the number of bushels of wheat bought for plaintiff, the price per bushel and the number and amount of checks used in payment of the same. On February 8, 1901, a settlement was had between the parties. After this date, five carloads of wheat were shipped by defendants to plaintiff's mill at Republic. These five cars were weighed by the Frisco Railroad Company at Monett and on their arrival at Republic the wheat was taken out and weighed by plaintiff in its mill. There is no evidence tending to show that any of the cars were defective or that there was any loss of wheat in transit. But there was a shortage of ten hundred and fifteen bushels and some pounds as ascertained from defendants' reports and checks giving the number of bushels of wheat they had purchased for plaintiff and paid for with its checks, and from the weight cards. Defendants' evidence tends to show that they weighed all the wheat they bought for plaintiff in sacks on platform scales; that after weighing it they emptied it into a sink from which it was elevated into bins specially set apart to contain wheat bought for plaintiff, and that all the wheat contained in these bins was transferred to cars and shipped to plaintiff at Republic. There were no scales at Wentworth for weighing cars, and defendants billed out the cars on estimates of their contents. Their evidence is that not a pound of the wheat bought for plaintiff was used by them, and that there was no way by which it could have become mixed with wheat bought on their own account, nor was there any chance for it to have been taken from the bins by a stranger or by theft.
Plaintiff objected to the following instructions given for defendants:
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