Dock & Mill Co. v. Southern Ry. Co.

• Decision Date: 07 January 1930
• Docket Number: No. 20885.,20885.
• Court: Missouri Court of Appeals
• Parties: DOCK & MILL CO. v. SOUTHERN RY. CO.

23 S.W.2d 202

DOCK & MILL CO. v. SOUTHERN RY. CO.

No. 20885.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Rehearing Denied January 24, 1930.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Suit by the Dock & Mill Company against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Kramer, Kramer & Campbell, of East St. Louis, Ill., and Samuel B. McPheeters and Wilder Lucas, both of St. Louis, Mo., for appellant.

Stout & Spencer, of St. Louis, for respondent.

HAID, P. J.

Plaintiff brought suit to recover from the defendant for the alleged conversion of a car of lumber. A verdict and judgment for $1,600, plus 6 per cent. interest, was returned in its favor, from which judgment this appeal is prosecuted.

The record shows the following facts: Prior to December 31, 1921, the Stone Hardwood Company of Savannah, Ga., had sold the F. T. Beck Lumber Company, of St. Louis, two cars of cypress, and had shipped one car upon the agreement that the latter should pay 80 per cent. on the receipt of the paper and the balance on arrival, less two per cent.; one car of lumber had been shipped and a draft was drawn on the F. T. Beck Lumber Company, but the draft was held in one of the St. Louis banks unpaid; the purchaser then asked that the second car be shipped and a check would be forwarded. The vendor shipped the second car. This second car was shipped via the railway of the defendant upon a "Straight Bill of Lading — Original — Not Negotiable," dated December 31, 1921, consigned to F. T. Beck Lumber Company, Rochester, N. Y., cheapest route for N. Y. C. delivery. When the paper reached St. Louis, the shipper wired the purchaser as to payment for the cars, but, that wire being ignored, a second wire was sent, and then, having secured an unfavorable commercial report on the purchaser, the shipper directed the defendant to divert the car to Albany, N. Y. The diversion order was communicated to defendant by telephone on January 7, 1922, and was confirmed by a letter of the same date. After the receipt of the last bill of lading above referred to, the F. T. Beck Lumber Company indorsed it: "Deliver to Dock and Mill Company, mail address, North Tonawanda, N. Y. F. T. Beck Lumber Company, by Robt. M. Howe." Pursuant to the diversion order, the car of lumber was diverted to the Pennsylvania Railroad at its Potomac yards, destined for Albany, N. Y., as per the diversion order, and reconsigned to the Eastern Cypress Company, at Albany, who, in turn, sold it to the Blakly Lumber Company, the car being paid for by the Eastern Cypress Company; that the car of lumber was never paid for by the F. T. Beck Lumber Company.

The plaintiff paid the draft of F. T. Beck Lumber Company for $965 upon receipt by it of the bill of lading indorsed as above described. On January 6, 1922, the New York Central received at Rochester a request from F. T. Beck Lumber Company to accept on arrival of car delivery instructions from plaintiff.

On January 7, 1922, the plaintiff notified the freight agent of the New York Central Railway, at Rochester, requesting the delivery of the car covered by this bill of lading to the party named in the letter, and in response thereto received from said agent a letter, dated January 9, stating that plaintiff's instructions would be complied with. The plaintiff carried on some further correspondence with the New York Central Railway, in one of which letters it sent the bill of lading for the perusal of the agent of the New York Central, but no correspondence whatever was had with the defendant company until January 27, 1922, when plaintiff wrote to the freight traffic managers of the defendant at Washington and Cincinnati, asking where the car was. In response to that letter, said freight traffic manager of the defendant at Cincinnati wrote plaintiff on February 2 that the car had been delivered to the Pennsylvania Railroad at the Potomac yards on January 13, and a like letter was written to plaintiff by the assistant to the freight traffic manager of the defendant at Washington, D. C., under date of February 1, 1922.

Defendant contends that the trial court erred in its refusal to give, at the close of the case, the instruction requested by it in the nature of a demurrer to the evidence. The shipment in question originated at Hawkinsville, Ga., for delivery at Rochester, N. Y., and therefore the rights, duties, and obligations of the parties are not to be measured by the laws or decisions of the courts of this state (Lord & Bushnell Co. v. Railroad, 155 Mo. App. loc. cit. 180, 134 S. W. 111; Alabama National Bank v. Mobile & O. R. Co., 42 Mo. App. loc. cit. 292), but are to be determined by the acts of Congress and the rules of law as applied by the federal courts (Mason's U. S. Code, 1926, c. 49, § 81, p. 3596 [49 USCA § 81]; Cincinnati, N. O. & Texas Pacific Ry. Co. v. Rankin, 241 U. S. loc. cit. 326, 36 S. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; Northern Pacific R. Co. v. Wall, 241 U. S. loc. cit. 91, 36 S. Ct. 493, 60 L. Ed. 905; Wall v. American Ry. Exp. Co., 220 Mo. App. 989, 272 S. W. 76).

The plaintiff asserts that, since the shipper or consignor turned over the bill of lading to the named consignee, and the latter assigned the bill to it for a valuable consideration before the consignor exercised his right of stoppage in transitu, the consignor lost such right. The undisputed evidence discloses that, while plaintiff wrote the freight agent of the New York Central, at Rochester, on January 7, 1922, requesting delivery of the car to the person named, it did not actually pay for and acquire the bill of lading until January 12, 1922, while both the oral and written order given by the consignor to defendant to stop and divert the car were given on January 7, 1922.

It would seem, therefore, that the unpaid consignor in this case had the right to stop the shipment while in transit (In re New York House Furn. Goods Co. [C. C. A.] 169 F. 612; In re M. Burke & Co. [D. C.] 140 F. 971; Scott Bros. v. Wm. B. Grimes Dry-Goods Co., 48 Mo. App. loc. cit. 524; Heinz v. Railroad Transfer Co., 82 Mo. 233; Kasden v. New York, etc., R. Co., 104 Conn. 479, 133 A. 573; Quality Shingle Co. v. Old Oregon L. & S. Co., 110 Wash. 60, 187 P. 705), and since, ordinarily, under such circumstances, the title to the goods, so far as the carrier is concerned, revests in the consignor, the latter is bound to obey the directions of the consignor to divert the shipment and deliver to the one whom the consignor has designated (Patterson v....