City of St. Charles v. Wabash Ry. Co.

• Decision Date: 05 December 1933
• Docket Number: No. 22177.,22177.
• Parties: CITY OF ST. CHARLES v. WABASH RY. CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

65 S.W.2d 655

CITY OF ST. CHARLES v. WABASH RY. CO. et al.^*

No. 22177.

St. Louis Court of Appeals. Missouri.

December 5, 1933.

Rehearing Denied December 19, 1933.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be published in State Reports."

Action in interpleader by the City of St. Charles, a municipal corporation, wherein the Wabash Railway Company, a corporation, and others counterclaimed. Judgment for defendants, and plaintiff appeals.

Affirmed.

Wm. F. Achelpohl, of St. Charles, and Jesse H. Schaper and Randolph H. Schaper, both of Washington, Mo., for appellant.

L. H. Strasser and Homer Hall, both of St. Louis, and B. H. Dyer, of St. Charles, for respondent Wabash Ry. Co.

McCULLEN, Judge.

This is an interpleader action brought by appellant (plaintiff) against respondents (defendants). Plaintiff's petition, also referred to as bill of interpleader, was filed on January 27, 1922, but the cause was not tried until November 7, 1930, on which date the court found that the counterclaim of defendant Wabash Railway Company was improperly pleaded in the cause, dismissed plaintiff's bill of interpleader, and dismissed the counterclaim. The Wabash Railway Company's motion for a new trial was sustained, and on April 29, 1931, the cause was again tried before the court sitting as a court of equity.

At the second trial the court denied and dismissed plaintiff's petition, found the issues in favor of each of the defendants, and rendered judgment in favor of defendants, respectively, for amounts which were, with a slight variation, the amounts claimed in their answers. Plaintiff appeals.

Plaintiff is a city of the third class under the laws of the state. Its petition alleged, in substance, that in February, 1921, it entered into a contract with the Success Oil Products Company, of St. Louis, Mo., whereby that company agreed to deliver, and did deliver to plaintiff during 1921, a quantity of road oil; that said company agreed to pay the freight charges thereon to St. Charles, Mo., and plaintiff agreed to pay for the oil on or before January 20, 1922. Plaintiff alleged that, in pursuance of said contract, the Success Oil Products Company delivered, and plaintiff received, ten tank carloads of road oil; that the defendant Liberty Central Trust Company of St. Louis sent to plaintiff invoices for nine of said carloads of oil, which invoices had been assigned for value to said defendant, and that said defendant demanded from plaintiff $6,144.67 as the contract price for said nine carloads; that defendant National City Bank of St. Louis sent to plaintiff an invoice for one of said carloads of oil, which invoice had been assigned to said defendant, and demanded from plaintiff $681.85 as the contract price for said carload. The petition averred that the Success Oil Products Company admitted the assignment of said invoices.

The petition further alleged that in November, 1921, defendant Wabash Railway Company presented to plaintiff claims for freight charges on the last three of the ten carloads of oil so delivered, and demanded payment from plaintiff of the sum of $618.67 for said charges; that of the said $618.67 the sum of $413.55 is claimed for freight charges due on the two carloads of oil, payment for which oil is demanded by the defendant Liberty Central Trust Company, and $205.12 thereof is for freight charges claimed on the one carload of oil, payment for which oil is demanded by defendant National City Bank.

The petition alleged that plaintiff has paid defendant Liberty Central Trust Company the whole amount of its invoices for the nine carloads of oil, less the sum of $413.55 retained by plaintiff pending adjustment of the freight charge claimed thereon by defendant Wabash Railway Company, and that plaintiff has paid to defendant National City Bank the whole amount of its invoice for said one carload of oil, less the sum of $205.12 retained by plaintiff pending adjustment of the freight charge claimed thereon by said railway company.

Plaintiff averred in the petition that it disclaims any interest in said sum of $618.67; that it cannot determine which of said rival claimants is entitled to said sum, or any part thereof, and that plaintiff cannot pay the same or any part thereof to one of said defendants without being subjected to litigation by the other parties claiming the same, and that said defendants are threatening to sue plaintiff for their respective claims. The petition prayed that the defendants be required to interplead in the cause to determine to whom said sum of $618.67 belongs; that plaintiff be permitted to pay said sum into court and thereupon be discharged from all liability on account of said demands.

Defendant Wabash Railway Company filed a separate answer alleging that it has not asserted or made claim to the specific sum of $618.67 retained by plaintiff out of the purchase price of the said three carloads of oil, and that it has no specific interest in or claim upon said sum other than as a direct claim against plaintiff as the consignee of said three carloads of oil, as set forth in its answer. The answer of said defendant then alleged in three separate counts its counterclaims against plaintiff for the unpaid freight charges on the three carloads of oil. Each count of the answer is based on a separate shipment, and each shipment is alleged to have been made under a standard form order bill of lading containing the following provision, as authorized and required by the Interstate Commerce Commission: "The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery."

In each count of said answer it was alleged that the carload of oil therein mentioned was transported by the St. Louis-San Francisco Railway Company from Tulsa, Okl., to Kansas City, Mo., whence said defendant transported it and delivered it to plaintiff, as the consignee, at St. Charles, Mo.; that demand was made by said defendant of plaintiff for the payment of the freight charge thereon, but plaintiff refused to pay same.

In each of the three counts judgment was prayed against plaintiff for the amount of the freight charge named therein.

The defendant Liberty Central Trust Company filed a separate answer admitting the existence of the contract between the Success Oil Products Company and plaintiff, and that the oil was delivered under said contract in the quantities and at the times and in the manner alleged in plaintiff's petition; admitted the assignment of invoices for nine of said carloads of oil from the Success Oil Products Company to the defendant Liberty Central Trust Company, in the sum of $6,144.67, and that plaintiff has paid to said defendant said sum, except the amount of $413.55; and denied all other allegations of the petition.

The answer then affirmatively pleaded the terms and conditions of the contract between plaintiff and the Success Oil Products Company, and alleged that said company had complied with all the terms thereof, and had duly assigned the invoices for the first nine carloads of oil to said defendant for a valuable consideration, with the knowledge and consent of plaintiff, and that plaintiff thereby became indebted to said defendant in the sum of $6,144.67; that plaintiff recognized said assignment and paid said defendant all of said sum, except $413.55, which plaintiff retained for freight charges claimed by defendant Wabash Railway Company on the last two of said nine carloads of oil.

The answer further alleged that, at the time the last two of the nine carloads of oil were delivered to plaintiff, the defendant Wabash Railway Company permitted plaintiff to unload said oil and made no claim at said time that the freight charges thereon had not been paid, and that whatever lien, if any, said defendant Wabash Railway Company had on said oil, or on the fund involved in the suit, it lost by delivering said oil to plaintiff; that, at the time of the assignment of the invoices of said two carloads of oil to defendant Liberty Central Trust Company, it took said assignment without notice or knowledge that defendant Wabash Railway Company had or made any claim on account of said freight charges.

The answer prayed judgment against plaintiff for the sum of $413.55, and that plaintiff be ordered to pay same to said defendant.

Defendant National City Bank also filed a separate answer, which, in substance, was the same as the answer of the Liberty Central Trust Company, except that the amount prayed for was $205.12, the balance claimed to be due said defendant as assignee of the invoice for the purchase price of one carload of oil, the last of the ten delivered.

Plaintiff filed a separate reply to the answer of the Wabash Railway Company, denying each and every allegation of new matter in the answer.

The only evidence introduced was an agreed statement of facts signed by counsel for plaintiff and counsel for defendant Wabash Railway Company. It was read in evidence by plaintiff, and was also submitted by defendant Wabash Railway Company as its evidence. The evidence thus introduced showed plaintiff contracted with the Success Oil Products Company for the purchase of ten tank carloads of oil to be delivered during the oiling season of 1921, by that company to plaintiff at St. Charles, Mo., freight charges prepaid.

The ten carloads were carried by the St. Louis-San Francisco Railway Company from Tulsa, Okl., to Kansas City, Mo., where they were delivered to the defendant Wabash Railway Company, which company transported them to St. Charles, Mo., where they were delivered by that defendant to plaintiff. They were shipped under standard form order bills of lading authorized and required by the Interstate Commerce Commission. Each contained the following provision: "The owner or consignee shall pay the freight and all other lawful charges accruing on said property,...