Bush v. St. Louis

• Decision Date: 14 November 1876
• Citation: 3 Mo.App. 62
• Parties: ISIDOR BUSH et al., Respondents, v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 62

ISIDOR BUSH et al., Respondents,

v.ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 14, 1876.

1. I. B. received an order for goods from H. H., whom he did not know, dated at St. C., a town of 8,000 inhabitants. Upon consulting a mercantile directory, I. B. ascertained that a saloon-keeper of good mercantile repute, named H. H., resided there, whereupon he sent the goods, by the defendant, a common carrier, to “H. H., St. C., Mo.;” also a bill of lading and a bill for the goods, by mail, to same address. By the bill of lading, if the goods were not removed within twenty-four hours after arrival at St. C., defendant was liable only as a warehouseman. At the date of these transactions there were two men in St. C. calling themselves H. H.--the saloon-keeper, and a stranger who had been there but a short time. On the arrival of the goods the defendant notified the saloon-keeper H. H. of their arrival, who said he had not ordered them, and would not receive them. The goods were removed to the warehouse of defendant. Four days afterward the stranger H. H. claimed the goods. Defendant's agents refused to deliver them, although they had heard of him as about opening a store there. He produced the bill of lading for them and delivered it to defendant's agents, who took his receipt for the goods and delivered them to him. He appeared in St. C. about a week or ten days before this, registered his name as H. H., at a hotel, rented a store by that name, and employed carpenters to fit it up, who went to work there. He sold part of the goods, shipped the remainder to himself at another point, and left St. C. The goods were not paid for. I. B. sued the defendant for the value of the goods, alleging a misdelivery. Held, that there was no misdelivery, and that I. B. could not recover; that the liability of defendant was that of a warehouseman; that there was an exercise of due diligence; and that the plaintiffs were guilty of negligence in not more particularly describing the business or address of the person to whom they intended to sell.

2. A warehouseman who uses due diligence is not liable to the consignor as for a conversion, in case of misdelivery, where the misdelivery is superinduced by the laches of the consignor, and the question of diligence is one for the jury.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

John M. Woodson, for appellant, cited: Benj. on Sales, 1st Am. ed., sec. 362; Dutton v. Solomonson, 3 Bos. & Pul. 584; Kerulder v. Ellison, 47 N. Y. 36; Arnold v. Prout, 51 N. H. 587; Garland v. Leane, 46 N. H. 245; Woolsey v. Bailey, 27 N. H. 217; Smith v. Smith, 27 N. H. 244; Putnam v. Tollston, 13 Metc. 517; Stanton v. Eager, 16 Pick. 469; Johnson v. Stoddard, 100 Mass. 306; Torrey v. Corliss, 33 Me. 336; Barry v. Palmer, 19 Me. 303; Wing v. Clark, 24 Me. 366; Odell v. Boston & Maine Ry., 109 Mass. 50; Rodgers v. Phillips, 40 N. Y. 529; Wag. Stat., secs. 4, 6-9, ch. 19; Odell v. Gray, 15 Mo. 342; Vallé v. Cerre, 36 Mo. 587; Davenport National Bank v. Homeyer et al., 45 Mo. 149; Burnell v. New York Central R. R. Co., 45 N. Y. 90; Add. on Torts, 3d ed., 329.

George W. Taussig, for respondents, cited: 2 Redf. on Rys., 3d ed., 25, 170; Story on Bail., secs. 543, 545, 546; 2 Hill. on Torts, 565, 598; Ang. & Ames on Corp., secs. 270, 274; Duff v. Budd, 3 Brod. & B. 177; Saguer v. London Ry. Co., 32 Eng. Law & Eq. 338; Claflin v. Boston R. R. Co., 7 Allen, 341; Hall v. Boston R. R. Co., 14 Allen, 443; Lichtenhein v. Boston R. R. Co., 11 Cush. 73; American Express Co. v. Stack, 29 Ind. 27; Winslow v. Vermont R. R. Co., 42 Vt. 700; Price v. Oswego R. R. Co., 50 N. Y. 213; American Express Co. v. Fletcher, 25 Ind. 72; Stephenson v. Hart, 4 Bing. 476; Devereux v. Barclay, 2 Barn. & Ald. 702; Michigan R. R. Co. v Heaton, 37 Ind. 452; Smithers v. Steamboat, etc., 27 Mo. 315; Cauntling v. Hannibal & St. Joseph R. R. Co., 54 Mo. 389; Chitty's Pl. 155.

BAKEWELL, J., delivered the opinion of the court.

This is a suit for the value of certain packages of wine and whisky, which, it is alleged, the defendant, as a common carrier, received from the plaintiffs, the owners thereof, on February 6, 1873, to deliver to one Henry Hund, at St. Charles, Missouri, and which, it is claimed, they did not deliver according to contract, but converted to their own use, so that the value thereof was totally lost to plaintiffs.

It appears from the evidence that the plaintiffs, on February 6, 1873, were merchants and copartners at St. Louis, and at that date received a letter from St. Charles, signed “Henry Hund,” ordering the goods mentioned in plaintiffs' petition--one barrel containing forty-nine gallons of wine, and one keg containing ten gallons of whisky. They did not know any Henry Hund at St. Charles, but, on consulting Bradstreet's reports, found that there was at St. Charles a man named Henry Hund, a saloon-keeper, of good mercantile repute. They thereupon at once shipped the goods over defendant's road, addressed to ““Henry Hund, St. Charles, Missouri,” and at the same time sent by mail, to the same address, a duplicate copy of the bill of lading issued by defendant to them, and also a bill for the goods sold. The bill of lading contained a condition that the goods should be removed from defendant's station within twenty-four hours after arriving at their destination, and that, if not so removed, the liability of defendant as a common carrier of said goods should then cease, and it would hold them as a warehouseman, at the risk of the consignee. That on February 6, 1873, there were in St. Charles two men calling themselves Henry Hund--one a saloon-keeper, of good character and standing, and an old resident, and the other a stranger, who had come to St. Charles a week or ten days before that date. For distinction's sake we will call the old resident Henry Hund No. 1, and the new-comer Henry Hund No. 2. On February 7, 1873, as well the liquors sued for, as some packages of groceries in another way-bill, arrived from St. Louis at the depot of defendant at St. Charles, all marked “Henry Hund, St. Charles, Mo.” The agent of defendant at once notified Henry Hund No. 1 of their arrival, and he said he had not ordered them, and knew nothing about them, and would not receive them. After remaining at the depot twenty-four hours the goods were sent, according to the custom of defendant, to the warehouse of defendant, to await the appearance of the consignee. About four days afterwards, Henry Hund No. 2 came forward and claimed the goods. The agents of defendant at first refused to deliver them, saying that they did not know the applicant, although both the station-agent and the warehouseman of the defendant had previously heard of this Henry Hund, as having recently come to St. Charles, and about opening a store there. He then said the goods were his, and he had the bill of lading for them, which he produced and delivered to defendant's agents, who thereupon took his receipt for the goods and delivered them to him. Henry Hund No. 2 appeared in St. Charles about a week or ten days before these events. He went to a hotel and registered his name as Henry Hund; he rented a store by that name, and made some attempt at fitting it up, employing carpenters for that purpose, who went to work there. He stored his whisky and wine, when they arrived, in a cellar in the occupation of the hotel-keeper, and sold him twenty-five gallons of whisky, for which he was paid. After spending about two weeks in St. Charles, he paid his hotel-bill and left, having previously reshipped what remained of the whisky and wine to his own address at St. Louis, where he received it in a day or two, and was heard of no more. St. Charles is a town of some 8,000 inhabitants; and no other Henry Hund seems to be known to any of the witnesses questioned on the subject, as residing in St. Charles at the date of these transactions, except the saloon-keeper and this transient boarder.

The cause was tried by the court sitting as a jury.

The court, at the instance of plaintiffs, declared the law to be,

1. That, on the evidence, plaintiffs are entitled to recover the value of the goods and interest.

2. That if plaintiffs were the owners of the goods described, and delivered them to defendant, and defendant agreed to carry them and deliver them to Henry Hund at St. Charles, for a reward to be paid by Henry Hund; that defendant carried said goods and did not deliver them to Henry Hund, but that defendant delivered them to a pretended Henry Hund, who presented to them the bill of lading; and if such person having said bill of lading was the person who ordered the goods of plaintiff, but was not Henry Hund, then the jury will find for plaintiffs, and assess, etc.

The defendant asked an instruction that, on the evidence, plaintiffs are not entitled to recover; and also asked several instructions, based upon its view of the law and facts of the case, as to the presumption of ownership arising from possession of the bill of lading, as to the degree of defendant's liability, and the degree of diligence to which it was bound; and an instruction based upon the theory that Hund No. 2 was an imposter, but the person to whom the goods were really sold, and who had the bill of lading. All these instructions were refused; and for the purposes of this case it is not necessary to set them out fully, nor to examine them.

The court gave a verdict for plaintiffs. A motion for a new trial having been filed and overruled, and all exceptions being saved, and the judgment of the Circuit Court at special term having been affirmed in general term, pro forma, the cause is brought here by appeal.

We are of opinion that, on this state of facts, plaintiffs are not entitled to recover; and the instruction to that effect should have been given.

There is not a scintilla of evidence that the man who received the goods was not Henry Hund. He...