Armentrout v. St. Louis

• Decision Date: 14 February 1876
• Citation: 1 Mo.App. 158
• Parties: ISAAC N. ARMENTROUT, Appellant, v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Respondent.
• Court: Missouri Court of Appeals

1 Mo.App. 158

ISAAC N. ARMENTROUT, Appellant,

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

1. After delivery of goods to a railway company, and receipt of the bill of lading therefor, the consignor loses all right of control over them, except the legal right of stoppage in transitu.

2. In case of injury to goods, the act of God cannot be set up as a defense by the carrier, if guilty of previous misconduct or neglect by which the exposure resulting in the loss was occasioned.

APPEAL from St. Louis Circuit Court.

Reversed and judgment.

Bereman & Smith, for appellants, cited: Wolf v. American Ex. Co., 43 Mo. 421; Bos. & Pul. 582; 2 Red., L. B. (5th ed.) 202, sec. 6; Comstock v. Affoelter, 50 Mo. 411; Davis v. Peck, 8 Tenn. 330; Arbuckle v. Thompson, 37 Penn. 170; Sanford v. Housatonic R. W., 11 Cush. (Mass.) 155; Green v. Clark, 13 Barb. 62; 2 Redf. on Ry., sec. 10; Coombs v. Bristol & Exeter Ry. Co., 3 H. & N. 4; Davenport N. Bank v. Homeyer, 45 Mo. 145; Bostwick v. Baltimore & Ohio R. R. Co., 55 Barb. 137; Long v. New York Central R. R. Co., 50 N. J. 76; 1 Pars. Mer. Law, 137, and notes; Odell v. Boston & Maine Ry. Co., 109 Mass. 50; Bryant v. Nix, 4 M. & W. 788; Grove v. Brien, 8 How. 438; Gibson v. Stevens, 8 How. 398; Holbrook v. Wright, 24 Wend. 169; Dows v. Green (Smith, J.), 24 N. Y. 645; Blossom v. Champion, 37 Barb. 563.

Blodgett & Dickson, for respondents, cited: Ang. on Car., sec. 511, p. 476; sec. 499, p. 468; Griffith v. Ingelow, 6 Serg. & R. 437; Ballentine v. North Missouri R. R. Co., 40 Mo. 505; 2 Greenl., sec. 256; Darwin v. Potter, 5 Den. (N. Y.) 306-308; Pendle v. Rench, 4 McLean, 259.

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

Plaintiff sues defendant, a common carrier, for breach of contract of affreightment, in not fulfilling its undertaking with plaintiff that it would securely keep and safely carry over its road, from Ottumwa, Iowa, to St. Louis, Missouri, and in reasonable time securely deliver to plaintiff's agent, in St. Louis, 100 boxes of eggs, whereby said eggs were totally lost to plaintiff, as he alleges, to his damage $2,000.

The case was tried by the court, a jury being waived, upon the following agreed statement of facts.

Plaintiff bought the 100 boxes of eggs in question of McCullough & Lilburn, at Ottumwa, Iowa, at the price of $1,528.04; he paid $10 in cash, and agreed with McCullough & Lilburn that, for the balance of the purchase price, they should draw against the shipment on Bussy & Co., at St. Louis, with the bill of lading, or receipt therefor of defendant, attached; of all which defendant had no knowledge.

Bussy & Co. were the commission merchants of plaintiff, to sell said eggs for plaintiff's account on arrival, and had no other interest in said eggs or the proceeds.

That on November 25, 1872, McCullough & Lilburn, accordingly delivered said eggs to defendant at Ottumwa, Iowa, and took its bill of lading, or receipt, therefor, which is on file in this cause, and may be read in evidence by plaintiff.

That thereupon George McCullough, one of the firm of McCullough & Lilburn, requested defendant to hold said eggs until ordered by them to be sent forward, the particulars of that transaction being set forth in an affidavit of one Phillipps, as follows:

“On morning of November 25, 1872, Geo. McCullough came to my office, in Ottumwa, and requested bill of lading for 100 boxes of eggs, to be shipped to Bussy & Co., St. Louis, and not load till following day. This I refused. The eggs were loaded the same day, November 25th, and Geo. McCullough requested car to be held at their risk until draft was accepted. Afternoon of November 27th he gave order to forward car, which was done on first train, morning of 28th, A. M., car 798.”

This request to hold and agreement to take all risks was made verbally.

That on November 25, 1872, said McCullough & Lilburn drew their draft on Bussy & Co. for said sum of $1,518.04, with said bill of lading, or receipt, attached; that the same, with bill of lading, or receipt, attached, were presented to Messrs. Bussy & Co., for acceptance, on November 27, 1872, and the draft was by them accepted, and paid by them on November 30, 1872, and charged to account of plaintiff, as plaintiff and Bussy & Co. had agreed it should be, and said draft is annexed hereto, and may be read in evidence herein.

That on November 28, 1872, McCullough & Lilburn directed defendant to forward the eggs to the consignees, Bussy & Co., at St. Louis, and it was at once done. They arrived at St. Louis, at ten A. M., on Sunday, December 1st, being a reasonable time after being forwarded, and notice of their arrival was given to Bussy & Co. on Monday, December 2d, as soon as could be done after their arrival; and that three days is ample and the usual time for freight to be carried from Ottumwa to St. Louis.

That Bussy & Co. had sold said eggs to arrive, on November 30th, at the price of $1,641.78, but, owing to the eggs having been frozen, they were sold to the best advantage, for $1,156.62; the said price of $1,641.78 being the usual and market price thereof in St. Louis, and said sale being lost because the eggs were so frozen.

That said eggs were so frozen because of the extreme cold weather on the route, and they would not have been frozen if sent forward on November 25, 1872.

That defendant had no knowledge of the interest of any one in the eggs, other than that of the consignor, except that shown, if any, by the receipt, or bill of lading, and by the affidavit of Phillipps.

That plaintiff, by his commission merchants, Bussy & Co., consignees, paid defendant the freight, $64, on said shipment, on its arrival in St....