Burrton State Bank v. Pease-Moore Milling Co.
| Citation | 145 S.W. 508,163 Mo.App. 135 |
| Parties | BURRTON STATE BANK, Appellant, v. PEASEMOORE MILLING COMPANY, Respondent |
| Decision Date | 01 April 1912 |
| Court | Missouri Court of Appeals |
Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and remanded.
J. N Burroughs for appellant.
(1) On the whole record it was undoubted error on the part of the court to refuse plaintiff's peremptory instruction. Williams v. Williams, 132 Mo.App. 266; Coleman v. Reynolds, 207 Mo. 463; Maloy v. Sweazea, 123 Mo.App. 179; Bank v. Eubanks, 124 Mo.App. 499; Strauss v. Gum Co., 134 Mo.App. 110. (2) Although defendant may have acted in good faith and believed that Knight was authorized to collect for the car of corn, yet that would constitute no defense to this action. Moore v Simms, 47 Mo.App. 182. (3) Instruction No. 3 for defendant is erroneous for the same reason charged against No. 2, and also for the further reason: First, there is no evidence tending to show that plaintiff bank or the grain company accepted or agreed to look to the Knight Brokerage Company for payment. Second, although such an agreement existed it would be necessary for defendant to prove and for the jury to find under the instruction that the defendant, the plaintiff or the grain company and the Knight Brokerage Company were all parties to such agreement, nor does the instruction complained of require any finding of that fact by the jury. Bank v. Walker, 132 Mo.App. 117. Third, because such agreement would not be valid and binding unless it was shown to have been based upon a valuable consideration. No consideration of any kind or character appears from the testimony. Gerhart Realty Co. v. Assurance Co., 94 Mo.App. 356; Cox v. Sloan, 158 Mo. 411. (4) In the case at bar the shippers were the owners of the flour and had absolute control over it. They consigned it to the defendants and drew upon them against the shipment, delivering over to the plaintiff the bills of lading as collateral to the drafts, which the plaintiff discounted. The defendants having refused to accept, they were not at liberty to appropriate the flour or the proceeds of it to their own use. It was the property of the plaintiff for the purpose of meeting the dishonored drafts Bank v. Homeyer, 45 Mo. 145. (5) On a shipment directly to the consignee a delivery to the carrier is a delivery to the consignee but that is not so when the shipment is to the consignor's own order. In the latter instance he does not part with his property. Milling Co. v. Stanley, 132 Mo.App. 308.
R. S. Hogan and Green & Wayland for respondent.
(1) The credibility of witnesses and the weight to be given to evidence is for the determination of the trial court and the jury and that determination is conclusive on appeal. Gregory v. Chambers, 78 Mo. 294; Lalor v. McDonald's Admr., 44 Mo.App. 439; Polhaus v. Railroad, 45 Mo.App. 153; Hurst v. Scammon, 63 Mo.App. 634; Saetelle v. Ins. Co., 81 Mo.App. 509; Love v. Ins. Co., 92 Mo.App. 192; Golden v. Tyler, 180 Mo. 196; State v. Murphy, 46 Mo. 347; Tower v. Pauly, 76 Mo.App. 287. (2) Where there is some evidence on which a verdict can be sustained the court will not interfere by usurping the province of the jury and pass on the credibility of the witnesses. Clark v. Shrimski, 77 Mo.App. 166; Talman Co. v. Hunter, 113 Mo.App. 671; St. Louis v. Packet Co., 214 Mo. 654. (3) The evidence must be considered most favorable to the respondent. Wamach v. Jenkins, 128 Mo.App. 412; Sparks v. Jasper County, 213 Mo. 218. (4) It is for the trial court not the appellate court to decide a point involving a determination of the weight of evidence. Conrad v. Railroad, 116 Mo.App. 517; Levels v. Railroad, 196 Mo. 616; Dowling v. Wheeler, 117 Mo.App. 182.
The plaintiff is a banking corporation located at Burrton, Kansas, at which place at the time this controversy arose, was a business concern known as the Burrton Grain Company. The defendant was a milling company, doing business at West Plains, this state. The Knight Brokerage Company was doing a grain brokerage business at Cherokee, Kansas. In May, 1910, the Burrton Grain Company received an order from one Knight, the owner of the brokerage company, to ship a car of corn to the Star Milling Company at Mountain Grove, this state. The car was forwarded by the Grain Company, with draft and bill of lading attached. The corn was refused at Mountain Grove by the milling company, for the reason that the invoice did not cover the kind of grain ordered. The grain company immediately notified Knight, who instructed the grain company to issue a new draft and bill of lading on the defendant company at West Plains, to which point the car of corn would be forwarded. The grain company issued a new draft, on the defendant company, with new bill of lading attached, and forwarded the same to the First National Bank at West Plains for collection. The draft was dated June 11, 1910, and was presented to the milling company by the bank for payment, and payment being refused, was protested on June 16th.
On the day the draft was issued, the grain company mailed to the milling company an invoice of the car of corn. The milling company claimed payment of the draft was refused because it had purchased no corn from the grain company, and none was at West Plains at the time to be delivered. It appeared, however, from the testimony that on June 16th, the milling company wrote the grain company, stating that the car of corn was on the track at West Plains, but there were extra freight charges and demurrage against the car, and the price was three cents too high. A few days later negotiations were resumed between the brokerage company and the defendant, and an agreement for the purchase of the corn was made. On June 23rd, a second draft on defendant was issued by the grain company, and it and the bill of lading were assigned and delivered to plaintiff. The draft was for the sum of $ 474, and which amount was, by the bank, placed to the credit of the grain company, and entered in its pass book.
The second draft with the bill of lading and a letter to the bank at West Plains (and according to plaintiff's testimony, all enclosed in a single envelope) came into the hands of the milling company about the 25th or 26th of June. The plaintiff claimed they were mailed to the bank at West Plains, but it seems the bank never received them. The plaintiff's theory was that by mistake, the envelope was addressed to the defendant instead of the bank, or that through the mistake of the postoffice employees at West Plains, it was deposited in the box of the defendant. The evidence showed that the boxes of the bank and the milling company were adjacent. The defendant claimed it received the bill of lading through the mail about the 25th or 26th of June; that the envelope was opened and destroyed, and that the defendant then took the draft and bill of lading and surrendered the latter to the railroad company, and thereupon the car of corn was delivered to it. The defendant kept the draft, and in a day or two remitted to the brokerage company for the car of corn, and refused to pay the plaintiff, and this suit was instituted in the circuit court of Howell county to recover for the corn.
The petition is in two counts. The first alleges, that the grain company shipped the defendant a car of corn, which defendant had agreed to receive and pay for on delivery; that the grain company issued a draft on defendant for the sum of $ 474, the price of the corn, and with bill of lading attached, for value, assigned both the draft and bill of lading to the plaintiff, and thereby plaintiff became the owner of the draft and bill of lading, and entitled to the car of corn, or the proceeds thereof; that the defendant, without paying for the corn, and with knowledge of plaintiff's ownership of said draft and bill of lading, took possession of the corn and appropriated the same to its own use and fails and refuses to pay plaintiff for said corn; that on account thereof, the defendant owes and stands indebted to plaintiff in the sum of $ 474, for which it prays judgment with costs.
The second count charges that the defendant converted the corn and prays for damages in the sum of $ 474, with interest. The case was tried before a jury, resulting in a verdict in favor of the defendant, from which the plaintiff appealed.
The defendant claimed that it purchased the corn of the brokerage company with no knowledge of the plaintiff's claim thereto, and that without such knowledge it paid the brokerage company for the corn. If this is true, or if there is any substantial evidence in support of it, the issue was for the jury. The defendant admits, however, that before it got possession of the corn, it received through the mail the bill of lading therefor, and a draft attached thereto, for the car of corn, each of which showed that they had been assigned to the plaintiff. This made a prima facie case that the money for the corn was claimed by the plaintiff. [Scharff v. Meyer, 133 Mo. 428, 34 S.W. 858; Webster v. Bear, 141 Mo.App. 531, 125 S.W. 815; Alabama Bank v. Railroad, 42 Mo.App. 284; Smith Co. v. Railroad, 145 Mo.App. 394, 122 S.W. 342.]
In order for the defendant to get the car of corn, it was necessary for it to present to the railroad company the bill of lading. This bill of lading showed that the consignor was the Burrton Grain Company, and that that company had assigned its interest in the bill of lading and the draft attached thereto, to the plaintiff. The bill of lading disclosed that the corn was consigned to the order of the grain company with instructions to notify the defendant company. In other words, the transaction was one that is carried on...
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