Brunswing v. Bush

• Decision Date: 05 April 1920
• Docket Number: No. 13192.,13192.
• Citation: 221 S.W. 759
• Parties: BRUNSWING v. BUSH.
• Court: Missouri Court of Appeals

221 S.W. 759

BRUNSWING v. BUSH.

No. 13192.

Kansas City Court of Appeals. Missouri.

April 5, 1920.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by Albert J. Brunswig against Benjamin F. Bush. From a judgment for plaintiff, defendant appeals. Affirmed.

Strop & Mayer and Ben J. Woodson, both of St. Joseph, and James M. Chaney and James P. Green, both of St. Louis, for appellant.

Culver 1& Phillip and Orestes Mitchell, both of St. Joseph, for respondent.

ELLISON, P. J.

This action is to reform a contract of shipment of six carloads of corn, and for damages alleged to have accrued to plaintiff for defendant's failure to carry out the contract. The contracts were reformed as asked by plaintiff, and he was allowed damages.

It appears that plaintiff at St. Joseph, Mo., had an order, through brokers at El Paso, Tex., for six carloads of corn. Two of the cars were to be shipped to San Luis Potosi, republic of Mexico, and four cars to Sattillo in the same country. Each of the shipments was by way of Eagle Pass, Tex., and was to be without transfer of the corn from one car to another. That is to say, the corn was to go through from point of origin to point of destination without change of cars. Plaintiff contracted with defendant for such carriage. But in writing the contract in the bills of lading the scrivener by mistake made it read that Engle Pass was the destination of the corn for export to San Luis Potosi and Sattillo, respectively.

The trial court reformed the bills of lading so as to conform to the contracts as actually made. The court also found that plaintiff had been damaged in amounts which we need not notice, since no complaint is lodged against the sums allowed.

There are but two assignments of error under defendant's points and authorities. The first is that, to authorize reformation of the contract, fraud should be, but was not, shown.

Reformation of contracts is not confined to cases of fraud. Mistake or misprision of the scrivener is sufficient to call for an exercise of the power of equity. Sicker v. Rambousek, 193 Mo. 113, 129, 91 S. W. 68; Wolz v. Venard, 253 Mo. 67, 82, 161 S. W. 760.

The second assignment is divided into two reasons: First, that the evidence does not show a breach of the contracts; and, second, that the contract shown was illegal, being contrary to acts of Congress designed to prevent discriminations in interstate shipments.

As to the first of these reasons, we think the contracts, as reformed, show that the shipments were to be made to the places named in Mexico without unloading from one car to another. In other words, each succeeding carrier should receive the corn in the car it, at the time, was loaded, and thus at destination the corn would be in the car into which it was loaded at point of shipment.

Room for controversy has arisen from the fact that in writing the bills of lading it was recited that the destination was Eagle Pass, Tex., for export to Mexico, and that the car was not to be transferred or allowed to cross the border between Texas and Mexico without surrender of each of the bills of lading, whereas the real contract was that shipment was by way of Eagle Pass, and the corn was not to be transferred from one car to another while en route to destination in Mexico.

We do not see, as suggested by defendant, that the fact the cars in which the corn was loaded were not to be taken over into Mexico without a surrender of the bills of lading affords any ground for the idea that Eagle Pass was the destination, instead of the points named in Mexico. It merely meant that the shipper wanted his money for which the corn stood as security, before it begun the hazard of a trip within the turbulent borders of the latter country.

So, taking the contracts to be as we have stated them, it appears that while the cars were en route plaintiff received a telegram that the Southern Pacific Railway (one of defendant's connecting carriers) would not take the corn into Mexico without transferring it into other cars. Permission to do this was refused, whereupon defendant's agents advised plaintiff to stop the cars in transit, sell the corn to best advantage, and present claim to defendant for any loss. This was done with the damages found by the trial court. These considerations leave no doubt as to the breach of the contract.

Coming to the last division of the second assignment, we find the ruling must be against defendant for two reasons: First, that the contract was not discriminatory; and, second, if discriminatory, the discrimination was not unjust.

Leaving out of view for the moment the question whether there was or was not a tariff rate into Mexico, we cannot see any element of...