Danciger v. The American Express Co.

• Decision Date: 02 July 1915
• Citation: 179 S.W. 806,192 Mo.App. 106
• Parties: DAN DANCIGER, ABE DANCIGER, JACK DANCIGER, MO DANCIGER and JOE DANCIGER, Partners Doing Business Under the Firm Name and Style of HARVEST KING DISTILLING COMPANY, Respondents, v. THE AMERICAN EXPRESS COMPANY, a Corporation, Appellant
• Court: Kansas Court of Appeals

179 S.W. 806

192 Mo.App. 106

DAN DANCIGER, ABE DANCIGER, JACK DANCIGER, MO DANCIGER and JOE DANCIGER, Partners Doing Business Under the Firm Name and Style of HARVEST KING DISTILLING COMPANY, Respondents, v. THE AMERICAN EXPRESS COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

July 2, 1915

Appeal from Jackson Circuit Court.--Hon. Wm. O. Thomas, Judge.

AFFIRMED.

Judgment affirmed.

Harry L. Jacobs, Ringolsky & Friedman for respondents.

Ashley & Gilbert for appellant.

OPINION

JOHNSON, J.

--Plaintiffs, who are partners doing business at Kansas City under the firm name of the Harvest King Distilling Company brought this suit in the circuit court of Jackson county, December 30, 1907, for the alleged conversion by defendant of 367 packages of intoxicating liquors of the value of $ 1391.80, which defendant had received as a common carrier for transportation and delivery to various consignees at different points in the State of Mississippi. The petition which is in one count contains an itemized list of shipments showing the dates of the respective consignments, the quantity and value of each, the respective destinations, that each was a C. O. D. consignment, and alleges "that on or about the 10th day of May, 1906, while said goods (referring to the liquors in all of the shipments) which were then valued at thirteen hundred ninety-one and 80/100 dollars were the property of plaintiffs and while plaintiffs had the right of possession to same, defendant then being in the possession of said goods, wilfully, wantonly and wrongfully converted the same goods to its own use and disposed of them to plaintiff's damage in the sum of $ 1391.80." The prayer of the petition is for the recovery of such damages and of exemplary damages in the sum of $ 400.

The suit was docketed as number of 35638 and on the same date plaintiffs filed another suit against defendant in the same court for the conversion of 450 packages of liquors of the total value of $ 1670.45 which the petition alleged plaintiffs delivered to defendant at Kansas City between the dates of April 1 and May 10, 1906, for transportation and delivery to various consignees in the State of Mississippi and that on or about May 10, 1906, defendant converted the liquors contained in all such packages to its own use. That case, which was docketed as number 35637, was tried without the aid of a jury on an agreed statement of facts and resulted in a judgment for plaintiffs. An appeal was allowed defendant to the Supreme Court on the ground that the cause presented a constitutional question, but the Supreme Court held there was no such question in the case and transferred it to this court.

It appeared in that case, as it does in this, that the refusal of defendant to deliver the packages was prompted by the enactment of a law in Mississippi which required "every person or corporation that shall maintain or operate any office or place of business in this State at which intoxicating liquors legally deliverable, are delivered, upon the payment of purchase money therefor, shall pay annually, for each said office or offices, or place or places of business, the sum of $ 5000." The position of defendant was that its refusal to deliver the shipments in the State of Mississippi was compelled by law and taking defendant in this position of its own selection, we held that it became its duty to return the different shipments to plaintiffs at their cost for the return carriage and that defendant had not performed this duty for the reason that after returning the goods to Kansas City, it had tendered them to plaintiffs upon the condition that they "would release defendant from all liability or claim of damages on account of the nondelivery of said packages to consignees." We recognized the rule that a party to a contract must perform or tender performance of the duties it puts upon him without protest, without imposing terms or conditions and without attempting to force the other party to agree in advance that his proffered performance shall be treated, if accepted, as a full discharge of his liability and we affirmed the judgment because defendant had not made such unconditional offer to return the goods. [Distilling Co. v. Express Co., 172 Mo.App. 391.]

An amended answer filed by defendant in the instant case April 29, 1910, alleged that both suits (Nos. 35637 and 35638) "were for the alleged conversion by defendant of personal property belonging to plaintiffs on or about May 10, 1906, as will more fully appear from an inspection of the pleadings and records of said two suits" and "that the conversion on or about May 10, 1906, if any, was but one transaction, had at the same time and place between the same parties and that the matter now in controversy was actually determined in the former suit, or might have been litigated under the issues then joined, and the said plaintiffs having made their election as to the manner and object of their suing, are now barred from suing again for the same transaction; and this defendant says said former suit operates as res adjudicata as to matters and things herein set forth and this the said defendant is ready to make appear."

The reply filed by plaintiffs met this charge of splitting a single cause of action into two suits, with the averment that the suit which had proceeded to judgment "was brought to recover damages for conversion of four hundred and fifty separate packages of liquor each delivered to defendant for shipment under a separate and distinct contract and the express charges paid separately by plaintiffs for each of said shipments. That the petition in said case No. 35637...