American Zinc, Lead & Smelting Co. v. Markle Leadworks

• Citation: 76 S.W. 668,102 Mo. App. 158
• Parties: AMERICAN ZINC, LEAD & SMELTING CO. v. MARKLE LEADWORKS et al.
• Decision Date: 03 November 1903
• Court: Missouri Court of Appeals

76 S.W. 668

102 Mo. App. 158

AMERICAN ZINC, LEAD & SMELTING CO. v. MARKLE LEADWORKS et al.

Court of Appeals at St. Louis, Missouri.

November 3, 1903.

SALES — BILL OF LADING — TRANSFER — INDORSEMENT — RIGHTS OF TRANSFEREE — APPEAL — EQUITY SUIT — DECLARATIONS OF LAW — REVIEW.

1. Since an equity suit is triable de novo on appeal on the whole evidence, declarations of law given or refused by the trial court afford no ground for reversal.

2. The delivery of a bill of lading for goods in the hands of a common carrier is sufficient to pass title to the goods without indorsement.

3. Where plaintiff's agent had customarily waived his right to retain possession of cars of ore sold to M. until paid for, and had permitted the cars to be loaded, sealed, and billed by M., or his agents, and sent forward, before being paid for, plaintiff could not recover the price of cars so shipped from a buyer from M., as against a bona fide transferee for value of the bill of lading therefor.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by the American Zinc, Lead & Smelting Company against the Markle Leadworks and another. From a judgment directing the payment of certain funds to the Miners' Bank of Joplin, plaintiff appeals. Affirmed.

Thomas & Hackney and Percy Werner, for appellant. McAntire & Scott and S. N. & S. C. Taylor, for respondent.

BLAND, P. J.

Plaintiff is a corporation. In August, 1901, and for several years prior thereto, it, as lessee, operated a lead and zinc producing mine in Jasper county, known as the "Cornfield Mine," and made weekly sales of the products of the mine in carload lots. For two years previous to August, 1901, one T. C. Molloy made weekly purchases of the lead ore plaintiff had for sale for cash on delivery in carload lots f. o. b. cars. The plaintiff had a private switch track near its mine, which connected with the Missouri Pacific Railroad, and cars were set in on the switch by the reailroad company on the orders of plaintiff, and for its convenience in loading its ore. It was the custom for Molloy, in person or by agent, to appear at plaintiff's office about the middle of each week and state the price he would pay for lead ore that week. If the price was satisfactory, the plaintiff would weigh and load its lead into the cars, seal them up, and give Molloy the weights, when Molloy would pay for the ore, bill out the cars, and send them forward. One L. B. Templeton was the purchasing agent of Molloy in the Carterville district, and made about all of his purchases from the plaintiff, and the bills of lading were frequently made out in Templeton's name. Don D. Molloy, a son of T. C. Molloy, was his general agent, and had entire charge of his office, and usually looked after the shipments of ore, and procured the bills of lading. The principal office of the plaintiff was in Joplin, Mo. W. D. Fisher was its general superintendent, but W. C. Glenn was the superintendent of the Cornfield mine, and looked after the loading of the ores from that mine, and their sale, and payments were made to him for the ore produced at the mine. The Markle Leadworks, a corporation, has its office in the Rialto building, in the city of St. Louis. Its plant is east of the river at Granite City, Ill. The Miners' Bank of Joplin is a banking corporation located at Joplin, Mo. On August 2, 3, and 5, 1901, the plaintiff loaded two car loads of lead ore on cars standing on its private switch. The loading of the cars was superintended by Glenn, and, after being loaded, were sealed by him to protect the ores from theft. About the middle of the week, Templeton, the agent of Molloy, appeared at the office of plaintiff near Carterville, and told Glenn the price of lead ore for that week would be $23.25 per thousand. Glenn agreed to the price, and gave Templeton a memorandum of the weight of one of the cars that was then loaded, and told him that he would not have the other car ready until Monday morning. On Monday morning Templeton telephoned to him for the weight of the second car, for the purpose, he said, of making a report to his company. Glenn gave him the weight. On August 8th Don D. Molloy got from the Missouri Pacific Railroad Company, at its commercial office at Joplin, bills of lading for each of the cars, showing the numbers of the cars, the pounds of ore each contained, and that they were received from L. D. Templeton, and were consigned to the Markle Leadworks, Granite City, Ill. Late in the evening of the same day Don D. Molloy presented these bills of lading to the cashier of the Miners' Bank of Joplin, to which he attached a draft drawn by T. C. Molloy in favor of the bank on the Markle Leadworks for $2,203.08, the supposed value of the shipment. The next morning, August 9th, the cashier entered a credit of $2,203.08 to Molloy's account with the bank, and forwarded the bill of lading, with the draft, to its correspondent in St. Louis, the Commercial Bank. The Markle Leadworks refused to pay the draft until it could have an opportunity to weigh and inspect the ore. This was finally assented to by the Miners' Bank, and the bills of lading were delivered to the Markle Leadworks for the purpose of enabling it to get possession of the cars. On taking possession of the cars and unloading the ore, it was found that on account of excess of weights, inferior quality of ore, demurrage, and excess freight charges, the net value of the ore was $1,956.90. The bank agreed to accept this sum in payment for the ore. But before payment was made the plaintiff gave notice to the Markle Leadworks that it claimed the ore, and demanded payment therefor. The Markle Leadworks refused to pay either the plaintiff or the Miners' Bank of Joplin. To enforce payment, suit was brought by the plaintiff against the Markle Leadworks for the value of the ore. The Markle Leadworks answered that it owed either the plaintiff or the Miners' Bank the value of the ore ($1,956.90), but did not know to which of them the money should be paid, and asked that the Miners' Bank of Joplin be required to interplead for the money, and that it be allowed to pay the money into court, and for its costs, and go hence without day. The court permitted the Markle Leadworks to pay the money into court, and ordered the bank to interplead for the same. The bank appeared, and by its interplead alleged the transfer of the bills of lading to it, with the draft attached; that it in good faith cashed said draft, and placed the proceeds to the credit of T. C. Molloy; that it accepted and cashed the draft on the faith of the transfer of the bills of lading to it by Molloy—and alleged that the transfer of said bills transferred to it the two car loads of lead ore. The answer of plaintiff to the interplea alleged that plaintiff never parted with its title to the two car loads of ore; that it never delivered it to Molloy or his agent, Templeton, and that its cars were taken from its private switch track without its knowledge or consent; that its sale to Molloy was for cash on delivery; and that Molloy wrongfully and unlawfully, without the consent of plaintiff, took possession of said two car loads of ore without paying any part of the purchase price. The bank filed a reply to this answer, in which it is stated that the plaintiff permitted Molloy to take the cars of ore without first paying for them, and that it was and had been a custom in the usual course of business between plaintiff and...