Buschow Lumber Co. v. Hines

• Decision Date: 07 March 1921
• Docket Number: No. 63865.,63865.
• Citation: Buschow Lumber Co. v. Hines, 229 S.W. 451, 207 Mo. App. 681 (Mo. App. 1921)
• Parties: BLISCHOW LIMBER CO. v. MIMES, Director General.
• Court: Missouri Court of Appeals

229 S.W. 451

207 Mo. App. 681

BLISCHOW LIMBER CO. v. MIMES, Director General.

No. 63865.

Kansas City Court of Appeals. Missouri.

March 7, 1921.

Rehearing Denied April 4, 1921.

Appeal from Circuit Court, Jackson County; C. A. Lucas, Judge.

Action by the Buschow Lumber Company against Walker D. Hines, Director General. From judgment for defendant, plaintiff appeals. Reversed, and cause remanded.

Luther Burns, of Topeka, Kan., and Sebree Sebree and Mord. M. Bogie, all of Kansas City, for appellant.

John O. Grover, of Kansas City, for respondent.

TRIMBLE, P.J.

Plaintiff brought this action against the Director General, in charge of the Chicago, Rocksland & Pacific Railway, to recover $822.68, the alleged value of a carload of lumber alleged to have been converted by the defendant at Atlantic, Iowa, after it had arrived at said destination. The answer, after admitting that defendant, as Director General, was in charge of said railway, contained a general denial. The cause was tried by the court, a jury being waived. Plaintiff asked no instructions or declarations of law, and those asked by defendant were refused. Judgment, in the full amount asked was rendered, and defendant has appealed.

Plaintiff, with headquarters in Kansas City, Mo., was engaged in the business of buying and selling lumber in carload lots; had no yards, its business being that of a lumber broker. Eliot Cobb, doing business as the Eliot Cobb Lumber Company, was a manufacturer of lumber, having his office at Meridian, Miss.

In completion of an order of plaintiff's, Cobb, on May 16, 1918, shipped a carload of lumber consigned to plaintiff at Coffeyville, Kan. The terms of the sale were 80 per cent. cash less 2 per cent. discount (amounting to $400 which plaintiff paid), the balance to be due upon arrival of car at destination.

Plaintiff resold the car of lumber to the Green Bay Lumber Company at Atlantic, Iowa, and there being no through rate from Coffeyville to Atlantic, the plaintiff, in order to get the benefit of a combination rate, diverted, reconsigned, or sent the car, over the Missouri Pacific Railroad on the original bill of lading to the Quinn Lumber Company at Council Bluffs, Iowa, and directed the latter company, as plaintiff's agent, to pay the freight on the car and turn it over to the Rock Island Railroad to be carried to Atlantic and delivered to the Green Bay Lumber Company. This the Quinn Lumber Company did, taking up the original bill of lading and billing the car in its own name from Council Bluffs, Iowa, to the Green Bay Lumber Company at Atlantic, Iowa, over the Rock Island. This new bill was issued June 7, 1918, and the car arrived at Atlantic June 28, 1918. The Green Bay Lumber Company, having been notified of its arrival, started to unload the car, but after taking out but one wagonload put it back into the car and notified the agent it would not accept the lumber, as it was not of the grade per.. chased, being unevenly sawed and of varying thickness from one edge to the other and from one end to the other.

On the same day, June 28, 1918, the Green Bay Lumber Company wrote plaintiff the situation and requested It to "have car moved at once" or have it inspected. Plaintiff wired the Green Bay Lumber Company to unload it with the understanding that they make proper allowance for anything not up to grade, and then on June 29, 1918, wrote

Cobb of their customer's refusal to accept the car and also told him what they had done. Cobb, on July 1, wired plaintiff not to unload car but to return it to carrier, and to advise him which road it was returned to. July 2, plaintiff wired and wrote Cobb that they had prevailed on customer to unload car so as to save demurrage, and, as the car could now be moved only on local rate, Cobb "would have a bigger loss" than if he would let the Green Bay Lumber Company have it and make whatever allowance was right; but if he wanted the car reloaded, plaintiff would have customer put it back in car, Cobb to stand cost of loading and unloading. The letter to Cobb closed by saying:

"In the event you decide to sell this material elsewhere we, of course, will have to insist on your loading out another car at once so that we can fill our order with customer. Kindly advise us at your earliest convenience how you wish this matter handled."

To plaintiff's telegram of July 2, Cobb on the same day replied by wire that, "You had no right to order car unloaded until we were notified," as he (Cobb) could ship the lumber elsewhere as No. 2 lumber and make money, and for plaintiff to wire immediately "amount of deduction you demand and we will advise, if excessive we will move the stock." On the same day Cobb followed this with a letter saying that he had wired to know what reduction was demanded on the shipment, "and if this seems excessive we will simply move the car elsewhere which is our right," but that if, after learning the amount of deduction demanded, he decided to move the car, plaintiff was not entitled to charge him up with the expense of reloading as plaintiff's customer distinctly stated to plaintiff the lumber was not wanted.

On July 5, Cobb wired plaintiff that as plaintiff knew nothing personally about the stock, and he (Cobb) could not find out anything about it from plaintiff, to have the car loaded "and turned back to the Rock Island. We are sending them shipping directions." To this plaintiff on same day wired Cobb it was having car reloaded and would "turn it back to the Rock Island," but that plaintiff expected Cobb to stand loading and unloading charges and also profit plaintiff had on car and for Cobb to "return advances" made on the shipment.

Thereafter certain correspondence by letter and telegraph ensued between plaintiff and Cobb, which was introduced by plaintiff, but which was objected to by defendant, and it was afterwards stricken out by the court.

The record discloses that the car reached Atlantic June 28, 1918, and the Green Bay Lumber Company took out one wagonload and then put it back in car and refused to accept it on June 29th. Then, on instructions from its general office, the Green Bay Lumber Company accepted the car and began to unload, and after taking out about 14,000 feet again put it back in the car and released the car to the railroad about July 11, 1918.

On July 5, 1918, Cobb directed the Rock Island Railroad that, upon the reloading of the car and the turning of same back to the carrier by the Green Bay Lumber Company, it would reconsign same to the Sieppel Lumber Company at Dubuque, Iowa, allowing all freight charges to follow the shipment. This the railroad did, without getting authority from plaintiff or the Green Bay Lumber Company, on the theory that Cobb was the owner and original shipper of the car at its initial shipping point.

There is one matter that necessitates a reversal of the judgment and a remanding of the cause even if all other points be decided in plaintiff's favor; and that is, there is no evidence whatever as to the value of the lumber defendant is alleged to have converted. Plaintiff says the price of the...