Bloom's Son Co. v. Haas

• Decision Date: 17 March 1908
• Citation: 108 S.W. 1078,130 Mo. App. 122
• Parties: BLOOM'S SON CO. et al. v. HAAS.
• Court: Missouri Court of Appeals

108 S.W. 1078

130 Mo. App. 122

BLOOM'S SON CO. et al. v. HAAS.

St. Louis Court of Appeals. Missouri.

March 17, 1908.

1. SALES — ACTS CONSTITUTING DELIVERY — DELIVERY TO CARRIER — "CONSTRUCTIVE DELIVERY."

Where goods are ordered, and no specific instruction given for shipment, a delivery to the usual carrier for the purchaser is a constructive delivery to the purchaser, and the goods become the property of the purchaser, subject only to the right of stoppage in transitu.

2. EVIDENCE — ADMISSIBILITY — HEARSAY.

On an issue of the condition of rice purchased when delivered to the carrier, evidence that, on delivery to the carrier, its agent issued a bill of lading reciting that the rice was in good condition; that there was no indorsement that the rice was damaged, and that, if it had not been in good condition, a clean bill of lading would not have been issued, but would have had indorsed thereon the condition in which the rice was, was hearsay, and should not have been admitted; since, though the carrier may have been the purchaser's agent upon delivery, it was not his agent in that sense which would justify an admission on its part as to the soundness of the rice, which would bind the purchaser in a suit for the price.

3. SALES — ACTION FOR PRICE — EVIDENCE.

On an issue of the condition of rice purchased when delivered to the carrier, evidence that at the same time the shipment was made sellers made shipments of rice to other purchasers out of the same rice in bulk, which were received without complaint, was wholly irrelevant.

4. SAME.

On an issue of the condition of rice purchased when delivered to the carrier, evidence that a few days before the shipment sellers had shipped purchaser rice out of the same bulk, which he had accepted without complaint, was improperly admitted.

5. APPEAL — HARMLESS ERROR — ADMISSION OF EVIDENCE.

Though there is some relaxation of strict rules in the reception of evidence where a case is tried before the judge without a jury, the appellate court cannot condone the erroneous admission, on an issue of the condition of rice purchased when delivered to the carrier, of hearsay evidence that, on delivery to the carrier, it issued a clean bill of lading without indorsement that the rice was damaged, or of evidence that, when the shipment was made, sellers made shipments to other parties out of the same bulk, which were received without complaint, or that a few days before the shipment sellers shipped purchaser rice out of the same bulk which he accepted without complaint.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by the Bloom's Son Company and others against Ed. Haas. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

John T. Sturgis, for appellant. O. L. Cravens, for respondents.

NORTONI, J.

This is an action on account for the value of a number of pockets or bags of rice sold by the plaintiffs to the defendant. The plaintiffs recovered in the circuit court, and the defendant appeals, insisting that the court admitted incompetent evidence on the part of the plaintiffs. The evidence tended to prove that the defendant ordered 50 pockets or bags of rice from plaintiffs, who are wholesalers of said commodity, doing business in the city of New Orleans. The rice was shipped over the Illinois Central Railroad as initial carrier to defendant at Neosho, Mo., at which point he conducts a wholesale grocery store. The defendant received the rice, and upon examination, either that day or the next, discovered that 16 bags of the same were spoiled. It seems that the rice had become saturated with oil, grease, or possibly water, so as to destroy its value. He refused to pay plaintiffs for the 16 pockets mentioned; hence this suit.

The case was tried to the judge without a jury. The theory advanced by the plaintiffs, as appears from the proof and the conduct of the case, was that the rice was sound and in good condition at the time it was delivered to the Illinois Central Railroad Company for carriage, and that such delivery, being to the usual and customary carrier, passed the title to the rice to defendant; that, if the rice became saturated while in the carrier's possession after delivery to it in good condition by the plaintiffs, the loss is the loss of the defendant, and...