Bergman v. Indianapolis & St. L. R. Co.

• Decision Date: 31 March 1891
• Citation: 15 S.W. 992,104 Mo. 77
• Court: Missouri Supreme Court
• Parties: BERGMAN v. INDIANAPOLIS & ST. L. R. CO.

15 S.W. 992

104 Mo. 77

BERGMAN v. INDIANAPOLIS & ST. L. R. CO.

Supreme Court of Missouri, Division No. 2.

March 31, 1891.

SALE — RESCISSION FOR FRAUD — STOPPAGE IN TRANSITU — AGENCY — NOTICE.

1. G. agreed to sell 24 mules on being informed by one D. that the money to pay for them had been deposited with a certain firm. He shipped the mules to said firm, and drew on them for the purchase money. D. fraudulently obtained from G. a statement that he had bought the mules, and on the strength of such statement obtained possession of the mules from said firm before they knew of the draft, and sold and delivered them to plaintiff's agent, who shipped them to plaintiff. Held, that G. had a right to retake the mules from the railroad company while in transit to plaintiff.

2. Declarations of said agent, made while the mules were in transit to plaintiff, are admissible in evidence as against the plaintiff.

3. Proof that the agent and D. were old acquaintances; that the sale was conducted in an unusual manner; that the agent made no denial when charged with knowledge of the fraud; and the fact that, though present at the trial, he was not called as a witness, — justify a submission to the jury of the question whether the agent knew of the fraud.

4. Where D.'s only right to possession of the mules was the statement he had fraudulently obtained, knowledge by the agent that this statement was untrue would prevent plaintiff from being an innocent purchaser.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

This is a suit against defendant as a common carrier to recover the value of 24 mules, delivered by plaintiff to it at East St. Louis, on the 14th day of January, 1883, to be carried to the city of Baltimore, and there delivered to plaintiff, 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 defendant. 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, Mo. 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 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 Bergman, 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 15 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 12th of January, 1883, Dennis went to Grant's home, and proposed purchasing 24 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 24 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 24 mules sold to John B. Dennis." The mules were forwarded Friday night, the 13th. 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 24 head of mules for $140 a head." The mules were delivered to McPike & Johnson by the railroad company, Sunday morning, January 15th, before they received the letter and draft. The statement given Dennis by Grant was shown McPike & Johnson, who were informed that the mules had been sold to Meyers. Thereupon, at request of Meyers, they were forwarded to plaintiff over defendant's road. After the mules had been forwarded from East St. Louis, in a settlement between Meyers and McPike & Johnson, the latter learned that Meyers claimed to have paid Dennis for the mules. They became suspicious, and telegraphed to Indianapolis for the return of the mules. Defendant returned them to Grant at St. Louis, and plaintiff brought this suit for damages. It will be seen the real contest is between plaintiff and Grant. What transpired at St. Louis before and after the shipment to plaintiff will more fully appear in the opinion.

Geo. B. Burnett and Geo. S. Grover, for appellant. Everett W. Pattison, for respondent.

MACFARLANE, J., (after stating the facts as above.)

1. The first objection urged by appellant is that no evidence was admissible, under the answer, for the reason that it appears therefrom that Grant was not entitled to the possession of the mules at the time they were delivered to him by defendant. We do not think the transaction between Grant and Dennis, as detailed in the answer, constituted an absolute sale of the mules, but only an agreement to sell upon condition that the purchase price should be paid upon delivery at St. Louis. The answer states with great particularity that Grant informed Dennis that he would only sell for cash. On being advised by Dennis that the money was on deposit with McPike & Johnson, it was agreed that Dennis "would pay cash for them upon delivery to him at the stock-yards of McPike & Johnson in St. Louis." Under the contract set up in the answer the possession was to remain in Grant and his agents until the purchase price should be paid. No facts are subsequently stated in the answer which recognize any right in Dennis to the possession; on the contrary, it is specifically charged that Dennis, and plaintiff's agent, Meyers, fraudulently and wrongfully obtained the possession from McPike & Johnson at St. Louis. This understanding is strengthened, if not conclusively shown, by the manner in which it was performed by Grant, in so far as he could control its performance. The answer states that the mules were delivered to the railroad company by Grant, and consigned to McPike & Johnson. The bills of lading were retained by Grant, and forwarded with the draft to the consignees. The manner of the shipment and the terms of the bill of lading sufficiently, in themselves, indicate the intention of Grant to retain the possession and control of the mules until payment of the draft. Bank v. Homeyer, 45 Mo. 146; Hutch. Carr. § 130; 1 Benj. Sales, § 567. It is insisted, in this connection, that before the contract of sale could have been rescinded by Grant, there must have been a return to Dennis of the amount paid; and the answer makes no allegation of a restoration of the money paid, or an offer to do so. There can be no doubt of the correctness of...