Bloom's Son Co. v. Haas
| Decision Date | 17 March 1908 |
| Citation | 108 S.W. 1078,130 Mo.App. 122 |
| Parties | BLOOM'S SON COMPANY et al., Respondents, v. HAAS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Sturgis & Geyer for appellant.
(1) This rice being shipped was at the seller's risk and he must suffer any loss or damage in transit. 13 Ency. Law (2 Ed.), p 726; Havens v. Fuel Co., 41 Neb. 153, 59 N.W. 681. (2) The court takes judicial knowledge that such is the meaning of these letters in a contract of shipment. Copehart v. Implement Co., 103 Ala. 671. "If however the seller undertakes to make delivery to the buyer at a distant place, the carrier is the seller's agent." 21 Ency. Law (1 Ed.) 530; Benj. Sales (6 Ed.) sec. 693; McNeal v. Braun, 53 N. J. Law 617, 23 A 687; Bank v. Smith, 107 Mo.App. 189. Devine v. Edwards, 101 Ill. 138; Murray v. Nichols Mfg. Co., 11 N.Y.S. 734. For a full discussion, see Lumber Co. v. Railroad (Neb.), 74 N.W. 670. (3) It was error for the court to admit over defendant's objections the evidence by deposition of the witnesses, Julius Cahn and Louis Fabacher, that the bill of lading issued by the railroad as carrier showed the rice was in good condition and not damaged in any way; that had the rice been damaged, the railroad would not have issued a clean bill of lading as this was. This evidence was and is pure hearsay. It is in effect allowing the witness to testify that the agent of the railroad inspected the rice at the time of delivery for shipment, found it was not damaged and so stated in the bill of lading. The only proper way to prove such facts was to call the railroad agent as a witness and give his evidence under oath subject to cross-examination. If the bill of lading stating these facts had been offered, it would have been pure hearsay, because not given by the party knowing the facts under oath and subject to cross-examination. And this is true of written as well as oral statements. 1 Greenleaf (16 Ed.), secs. 98, 99 and 99a, pages 182-3; Gillet Ind. and Collateral Evidence, secs. 224 and 225, pp. 282, 283; 15 Ency. Law (2 Ed.), 309; State v. Sutton, 64 Mo. 107; Haskins v. Railroad, 19 Mo.App. 315. And the witness' statement of what the bill of lading showed is secondary evidence of the hearsay evidence. Price v. Hunt, 59 Mo. 258; O'Connell v. Nicholson, 67 Mo.App. 657.
O. L. Cravens for respondent.
--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 fifty pockets or bags of rice from plaintiffs, who are wholesalers of that 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 Missouri, 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 sixteen 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 sixteen 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 not one these plaintiffs should sustain. Now it is the established law that when goods are ordered and no specific instructions are given in regard to their shipment, as in this case, a delivery to the usual carrier for the purchaser with proper directions, is a constructive delivery to the purchaser, and the goods, immediately upon such delivery to the carrier, become the property of the purchaser, subject only to the right of stoppage in transitu. The purchaser by issuing general directions to ship, as in this case, authorizes the seller to ship in the usual way and renders the carrier the agent of the purchaser for the purpose, at least, of receiving the goods for carriage and operating a transfer of the ownership. This being true, the important question in this case, therefore, is the condition of the rice at the time of its delivery to the carrier at New Orleans. The plaintiffs introduced two witnesses only. One of these was the plaintiff Cahn, the other the drayman who delivered the rice to the railroad station at New Orleans. Both gave evidence to the effect that it was in good condition when delivered to the railroad. It appears, however, that they made no careful inspection of the rice. Their testimony concerned rather its condition as it appeared in the sacks. Both of these witnesses were permitted to testify over the objections and exceptions of the defendant that...
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