Chicago, B. & Q. R. Co. v. Fowler

• Decision Date: 03 March 1930
• Citation: 27 S.W.2d 72,224 Mo.App. 736
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, A CORPORATION, RESPONDENT, v. F. A. FOWLER, DOING BUSINESS AS GATEWAY HAY COMPANY, APPELLANT
• Court: Kansas Court of Appeals

27 S.W.2d 72

224 Mo.App. 736

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, A CORPORATION, RESPONDENT, v. F. A. FOWLER, DOING BUSINESS AS GATEWAY HAY COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

March 3, 1930

Appeal from the Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.

AFFIRMED (conditionally).

Judgment reversed and remanded.

H. J Nelson and Langworthy, Spencer & Terrell for respondent.

Kenneth W. Tapp for appellant.

BOYER C. Barnett, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

Plaintiff sued to recover an alleged balance of demurrage charges on six carloads of hay shipped by defendant from Kansas City, Missouri, to Billings, Montana.

The principal facts out of which the controversy arose are set forth in a stipulation filed by the parties from which it appears:

That on or about May 11, 1920, defendant delivered to plaintiff at Kansas City, Missouri, six carloads of hay for transportation to Billings; plaintiff issued to defendant its several order bills of lading covering said shipment, by which said six cars were consigned to defendant's order at Billings, "notify W. H. McCormick." Copies of the bills of lading were agreed to and attached to the stipulation. It was further agreed that the reasonable value of the hay at the time of its arrival at destination was $ 31 per ton delivered, and after deducting freight the net value of each car was the amount of the respective drafts drawn by defendant and attached to said bills; that defendant prior to the arrival of said cars at Billings attached the original bills of lading to drafts drawn on W. H. McCormick, endorsed the bills of lading in blank and delivered the same with the drafts to the Inter-State National Bank of Kansas City, Missouri, received from said bank the amounts of said several drafts, and the bank thereupon became the owner and holder of said drafts and bills of lading and entitled to the proceeds of the drafts or to the contents of said cars; that plaintiff did not know of these facts at the time of their occurrence; that said cars were transported by plaintiff to their destination and arrived at Billings on different days from May 27th, to June 2nd inclusive, and after arrival of each car W. H. McCormick was notified personally of said arrival by plaintiff's agent; that the said McCormick upon being notified did not refuse said cars, but led plaintiff's agent to believe that he would accept them. The Inter-State National Bank sent the drafts and bills of lading to the Merchants National Bank at Billings for collection. The latter bank presented the drafts to McCormick for payment, but payment was not made. Thereafter, about June 5, 1920, McCormick filed a suit in the District Court of Billings, Montana, against the Gateway Hay Company, a corporation, and in aid thereof filed an affidavit and bond for an injunction, as a result of which an injunction order was issued by said court and served on plaintiff that day; copies of the petition, affidavit, bond and order in said suit are attached to the stipulation as exhibits. On June 7th, plaintiff's local agent at Kansas City, gave defendant by telephone message the first notice he had received that McCormick had not accepted the hay and of the suit filed by him. This information was confirmed by a letter dated June 8, 1920, and received by defendant the next day; that said injunction order was obtained and plaintiff enjoined from delivering said cars without impounding the bills of lading, which were at that time in possession of the Merchants National Bank of Billings; that on June 8th, demand was made on plaintiff and the other parties to the injunction order for delivery of said six cars of hay, which demand was accompanied by an offer to pay the then accrued legal charges and to surrender the original bills of lading, but delivery was refused on the ground of the then existing injunction order. On June 10th, the Inter-State National Bank filed its interplea in an effort to dissolve the injunction and plaintiff McCormick resisted this successfully. Thereafter, on June 23rd, McCormick voluntarily obtained an order dissolving said injunction; that on June 24th, at ten o'clock A. M., plaintiff was notified of the dissolution of said injunction order and thereupon immediately requested McCormick to take delivery of the hay, which was refused by him; thereafter plaintiff immediately made verbal request on defendant to furnish disposition of said hay, but defendant refused to furnish disposition or take delivery unless the demurrage charges assessed by plaintiff to June 24th, claimed by defendant to be illegal, were waived by plaintiff, which plaintiff refused to do. Defendant made a like refusal on June 29th. The charges assessed by plaintiff for freight and demurrage are shown by an exhibit attached. It is admitted that the freight charges are correct and that the rates of said demurrage charges are correct, although it is not admitted that the demurrage charges were assessed for the correct number of days. Thereafter plaintiff sold said six cars of hay, about July 2nd, for the sum of $ 646, after compliance with the tariff provisions regarding sale of freight for unpaid charges. The sum realized was applied by plaintiff to the payment of charges assessed, and the present suit is for recovery of an additional sum of $ 578.04, the balance claimed to be due on said charges.

It was further agreed that defendant was compelled to and did reimburse the Inter-State National Bank of Kansas City in connection with said drafts in the sum of $ 1428.46, and received from said bank the original drafts and bills of lading, which said amount he seeks to recover on counterclaim from plaintiff in this suit; that at the time of the refusal of McCormick to pay said drafts and up to June 9th, said hay could have been resold at Billings for a price equal to the amounts of said drafts, plus freight, but subsequent thereto a depreciation in the market value of hay occurred and at the time the injunction was dissolved said hay was then only reasonably worth the amount which plaintiff afterwards realized at the sale. It is agreed that defendant is the right party defendant upon plaintiff's alleged cause of action, and that if any cause of action exists in favor of defendant from the facts set forth, it is agreed that plaintiff is the party liable therefor.

It was agreed that either party might offer additional evidence not in conflict with the agreed facts, and that the statutes and decisions of the State of Montana and particularly the decision of the Supreme Court of Montana in the case of Inter-State National Bank v. McCormick, reported in 214 P. 949, might be considered by the court with the same effect as if set forth in the pleadings, and offered in evidence. To the stipulation was attached a number of exhibits including the bills of lading, the drafts attached thereto, petition in the case of McCormick v. Gateway Hay Company, the affidavit for injunction, injunction bond, the order of injunction, petition and motion of Inter-State National Bank to dissolve the injunction, order on said petition that McCormick show cause why the injunction should not be dissolved, McCormick's request for a dissolution of the injunction, the order dissolving the injunction, exhibit showing freight and demurrage charges due on each car, and the demurrage tariff known as "Agent J. E. Fairbanks No. 4."

It was further shown by oral testimony that the Gateway Hay Company made its adjustment with the Inter-State National Bank on account of the amount involved in the drafts on September 13, 1923, and its actual amount of loss determined at that time. The Inter-State National Bank sued McCormick in the Montana courts and by final judgment in the Supreme Court of that state recovered and collected a net amount thereon of $ 773. The basis of that suit was the damage, including demurrage, caused by McCormick in procuring the injunction order and tying up the cars of hay. The amount received by the bank was credited to the amount which it had advanced to defendant on the drafts and defendant was charged with the difference.

A memorandum showing the various dates of arrival, and dates of notice, and the various days subsequent to the arrival of each car for the purpose of showing Sundays excluded under the terms of the tariff, and the days from which demurrage would properly start, and the date for which an unclaimed notice should be had under the tariff was offered in evidence. Plaintiff also offered in evidence copies of the complaint, answer, judgment, and decision of the Supreme Court of Montana in the case of Inter-State National Bank v. W. H. McCormick.

The petition charged the appropriate facts of having received the hay for shipment, notification of its arrival, tender to McCormick, his refusal to accept, notification to defendant, the injunction order, dissolving of same, further request for disposition of the hay, defendant's refusal, sale of the hay, and application of the proceeds to the charges accrued; that the total freight charges accruing and the legal tariff was the sum of $ 551.45, and that in addition thereto the sum of $ 653 and $ 19.59 war tax accruing for car service at Billings, according to the lawful tariff, making a total of $ 1224.04. That the sum of $ 646 was obtained from the sale of hay and applied on the charges leaving a balance of $ 578.04 due and owing; demand for payment was made upon defendant and payment refused. Plaintiff prayed judgment for the sum claimed with six per cent interest from May 11, 1920. This petition was filed May 8, 1922.

On July 21, 1925, by leave of court, defendant filed its amended answer and counterclaim in which it made general...