Central Nat. Bank v. Pryor

• Decision Date: 03 December 1918
• Docket Number: No. 15024.,15024.
• Citation: 207 S.W. 298
• Parties: CENTRAL NAG. BANK v. PRYOR et al.
• Court: Missouri Court of Appeals

207 S.W. 298

CENTRAL NAG. BANK v. PRYOR et al.

No. 15024.

St. Louis Court of Appeals. Missouri.

December 3, 1918.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by the Central National Bank against Edward B. Pryor and others, as receivers of the Wabash Railroad Company and another in the justice court. Judgment for plaintiff, and defendants appealed to circuit court, where judgment was rendered for plaintiff and against the receivers for the amount claimed, but against plaintiff and in favor of the defendant St. Louis, Iron Mountain & Southern Railroad Company, and the receivers appeal. Affirmed.

Walter N. Davis, L. H. Strasser, and N. S. Brown, all of St. Louis, for appellants.

Greensfelder & Levi, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff here commenced its action before a justice of the peace against the St. Louis, Iron Mountain & Southern Railway Company, hereafter referred to as "the Iron Mountain," and Edward B. Pryor and others as receivers of the Wabash Railroad Company, hereafter, for brevity, referred to as "the Wabash." Stating its own incorporation and that of the Iron Mountain, and that Pryor and two others named as receivers of the Wabash are defendants, the statement proceeds:

"That said defendants are indebted to the plaintiff in the sum of three hundred seventy-nine dollars ($379.00), being the value of 400 sacks of mixed live stock feed received packed in car No. 39042 of the D., L. & W. R. R. Co."

From a judgment before the justice in favor of plaintiff the defendants appealed to the circuit court, where the cause was tried before the court, a jury being waived.

At the conclusion of the trial the court rendered judgment in favor of plaintiff and against the receivers of the Wabash for the amount claimed but against plaintiff and in favor of the Iron Mountain. The Wabash Receivers and plaintiff filed motions for a new trial, both of which were overruled. The receivers for the Wabash perfected an appeal to our court but plaintiff, while praying an appeal, does not seem to have taken any further steps therein; at least, is not before us as appellant. Plaintiff, however, does complain, in argument, of the failure of the court to allow interest.

It appears from the evidence in the case that the car was placed on what is ordinarily called "commercial tracks," in front of the premises of the plaintiff, loaded with 400 sacks mixed live stock feed, "Holstein," as it is called, and sealed. Who so placed and sealed it does not appear. This occurred on July 26th, 1912. The shippers of the load were K. & E. Neumond, who had also manufactured it, their place located at "2600 South Levee to Main Street," St. Louis. On that day, that is July 26th, the Iron Mountain gave this form of receipt:

"Received in good order from K. & E. Neumond, * * * 2600 South Levee to Main Street, * * * by Wabash Erie R. R. Steamboat Line, Erie R. R. delivery. To be delivered in like good order.

"To shippers' order notify Rosekrans-Snyder Co., Deposit, N. Y.

                  Marks        Articles          Weight
                Holstein    400 (100) Sx mixed    40,000
                             Live stock feed
                

"Loaded by Shippers. The St. L., I. M. & S. Ry. Co. getting no revenue except for switching, only handles it on condition that under no circumstances will it be held responsible for quality, quantity or condition of contents. Switching $_____ per car of 40,000 lbs. Excess at proportionate rate."

This was signed by the agent of the Iron Mountain and was introduced in evidence by the defendant receivers.

On the same date the agent for the receivers issued an "order bill of lading," wherein it is set out that the receivers of the Wabash had received, subject to classification, etc., at St. Louis, Missouri, July 26th, 1912, from K. & E. Neumond, the property described (following the description as in the before mentioned paper), to be delivered at Deposit, N. Y., routed "Erie R. Steamboat Line Erie Del'y," car initial "D L & W, car No. 39,042." Following the description and special marks of the articles is this notation:

"Bill of lading issued on St. L., I. & S. Ry.'s receipt. Wabash Railroad Bill Lading issued July 26, 1912. B. H. Coyle,

                                 "Gen'l Agt. Frt. Dept."
                

The shippers, K. & E. Neumond, drew a sight draft on Rosenkranz & Snyder Co., Philadelphia, payable to Central National Bank, plaintiff here, or order, for $379, and attached it to the invoice covering the shipment and the bill of lading above mentioned. This draft was presented and protested for nonpayment and purchased by the Central National Bank, plaintiff.

Plaintiff produced and read in evidence the bill of lading before mentioned and introduced...