F. H. Smith Co. v. Louisville & N. R. Co.

• Decision Date: 02 November 1909
• Citation: 122 S.W. 342,145 Mo. App. 394
• Parties: F. H. SMITH CO. v. LOUISVILLE & N. R. CO.
• Court: Missouri Court of Appeals

122 S.W. 342

145 Mo. App. 394

F. H. SMITH CO. v. LOUISVILLE & N. R. CO.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

Rehearing Denied November 16, 1909.

1. SALES (§§ 291, 296) — "STOPPAGE IN TRANSITU" — NATURE OF RIGHT.

The "right of stoppage in transitu" exists where the goods have not been paid for and the buyer is insolvent, but the right presupposes the vesting of title, but may be exercised before the expiration of the term of credit or the maturity of the buyer's note, at any time before the goods come to the possession of the buyer.

2. SALES (§ 291) — STOPPAGE IN TRANSITU — NATURE OF RIGHT.

The refusal of a buyer to honor drafts drawn by the seller for the price is not in itself evidence of the insolvency of the buyer essential to justify the exercise of the right of stoppage in transitu.

3. CARRIERS (§ 94) — NONDELIVERY OF GOODS — ACTION BY BUYER — EVIDENCE.

Whether a buyer suing a carrier for nondelivery of goods had advanced money to the seller on account of the goods is a question of fact for the trial court to determine.

4. TRIAL (§ 386) — TRIAL BY COURT — REFUSAL OF INSTRUCTIONS.

The court may refuse a requested instruction contrary to the facts found.

5. SALES (§ 218½) — DELIVERY — PRESUMPTIONS.

The delivery by the seller to the buyer of a bill of lading is strong presumptive evidence that title passes to the buyer named as consignee, but this presumption may be overthrown by evidence, and must be determined by the facts peculiar to the transaction itself.

6. CARRIERS (§ 93) — DELIVERY — LIABILITY.

A carrier, who has issued a bill of lading in favor of the buyer of goods, acts at its peril when, as carrier or as warehouseman, it diverts the goods, and it must ascertain the facts, and its justification in diverting the goods turns, not on its knowledge or want of knowledge of the facts, but on the facts themselves.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by the F. H. Smith Company against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Action by plaintiff, appellant here, against the respondent, to recover the value of three car loads of poplar lumber, plaintiff averring in the first count of its amended petition that the Nashville, Chattanooga & St. Louis Railroad Company, on the 23d day of May, 1906, received from the Kennesaw Hardwood Lumber Company, at Atlanta, Ga., consigned to plaintiff, a car load of poplar lumber for transportation and delivery to plaintiff at East St. Louis, Ill., and issued its bill of lading for the same, the lumber being contained in a car marked "Wabash, No. 66923"; that the bill of lading shows on its face that the Nashville, Chattanooga & St. Louis Railroad Company was to deliver the car to the defendant, Louisville & Nashville Railroad Company, and that that defendant was to deliver the car of lumber to plaintiff at East St. Louis; that defendant received and accepted the car for transportation to plaintiff at East St. Louis, but that it has failed and neglected to deliver it to plaintiff; that the plaintiff has made demand on defendant for the lumber contained in the car, and defendant refused to deliver said car load of lumber to plaintiff. The petition further avers that plaintiff "has purchased said bill of lading and the lumber contained in said car, and that he is the lawful and rightful owner of said lumber and said bill of lading." Averring that the lumber is of the reasonable value of $417.76, plaintiff demands judgment for that amount, with interest. The second and third counts are similar to the first, with the exception that the lumber claimed in the second count was in a car marked "Penna., No. 76169," and valued at $441, and in the third count the car is marked "Nashville, Chattanooga & St. Louis — 6552," and the lumber valued at $423.05.

The action seems to have been dismissed as to the Nashville, Chattanooga & St. Louis Railroad Company, and thereafter prosecuted against the Louisville & Nashville Railroad Company alone. The latter company answered by a general denial, and by the specific averment that plaintiff did not at any time own or have any interest in, or have the right of possession of, the lumber described in the several counts of the petition. The case was tried before the court, a jury having been waived; and, while a great deal of testimony was introduced, the case appears to have been ultimately submitted on an agreed statement of facts. A comparison of that with the testimony shows that this stipulation covers practically all the essential facts. It is only necessary to add to it that, in addition to the facts there agreed upon, it is not disputed that before sending the telegram referred to in the stipulation as of date May 29th plaintiff, on May 28th, had sent to the Kennesaw Hardwood Lumber Company, at Atlanta, Ga., a telegram as follows: "Cannot accept drafts drawn; stop shipping poplar; grade not right."

This stipulation is as follows:

"A number of cars were shipped by Kennesaw Hardwood Lumber Company, and drafts were, on presentation by St. Louis bank, either paid or accepted by F. H. Smith Company, and bills of lading covering such cars were received by F. H. Smith Company, and the cars delivered to the F. H. Smith Company by the railroad on surrender bills of lading.

"Three Cars in Question.

"Wabash 66923. Lumber by Kennesaw Hardwood Lumber Company was delivered into this car at Atlanta, Ga., May 23, 1906, consigned by said lumber company to said F. H. Smith Company, East St. Louis, Ill. Bill of lading was issued on that date accordingly. Drafts for $141.36, dated Atlanta, Ga., May 22, 1906, payable on June 7, 1906, to order of Kennesaw Hardwood Lumber Company, stating on its face `one-half car from Atlanta, Georgia, W. R. R. 66923,' drawn on F. H. Smith Company, Commercial Building, St. Louis, Mo., drawn by Kennesaw Hardwood Lumber Company, of Atlanta, Ga., and another draft for $141.37, dated May 22, 1906, payable June 6, 1907, to order of Kennesaw Hardwood Lumber Company, for one-half car from Atlanta, Ga., W. R. R. 66923, drawn on F. H. Smith Company by Kennesaw Hardwood Lumber Company, were transmitted for collection at Atlanta May 22, 1906, and were received and presented May 24th and 25th, respectively, by the National Bank of Commerce to F. H. Smith Company for acceptance, and acceptance and payment by F. H. Smith Company were refused, and drafts were at once returned to shippers at Atlanta. On May 24th F. H. Smith Company, which had on that day received bill of lading for this car, turned same over to defendant, requesting reconsignment from East St. Louis, Ill., to St. Louis Car Company, St. Louis, Mo. On May 28th the Kennesaw Hardwood Lumber Company instructed the Nashville, Chattanooga & St. Louis Railway Company, the initial carrier, and the defendant, the next connecting and final carrier, to hold shipment subject to the order of the shipper, telling them that the shipment was the property of the shipper. The Louisville & Nashville Railroad Company held the car pursuant to this instruction until June 6th, when it was ordered diverted, and was diverted by defendant on the order of the shipper to Steger, Ill. On May 29th F. H. Smith Company telegraphed Kennesaw Hardwood Lumber Company at Atlanta, Ga., as follows: `Will accept no more drafts or any more poplar. Stop. This imperative.' On May 29th the car arrived at destination in East St. Louis, Ill., where the car was held by the Louisville & Nashville Railroad, as above stated, subject to instructions from shipper. On May 31st Mr. Creelman, of the Kennesaw Hardwood Lumber Company, met Mr. Smith, of the F. H. Smith Company, at St. Louis, and a settlement of some sort was reached in regard to cars that had been shipped, and, as the F. H. Smith Company contends, in regard to car Wabash 66923. The Kennesaw Hardwood Lumber Company, however, says that no settlement was made on that day, or at any time, for this car. On June 6th the car was diverted by defendant to Steger, Ill., as above stated. The drafts for this car were never paid or taken up by F. H. Smith Company.

"Pennsylvania 76169. Shipped by Kennesaw Company to Smith Company from Atlanta to East St. Louis May 22, 1906, by way of Nashville, Chattanooga & St. Louis and Louisville & Nashville Railroad; consigned straight to F. H. Smith Company; bill of lading issued. Draft for $298.58, dated May 21, 1906, payable June 5, 1906, on account car Pennsylvania 76169, was presented by National Bank of Commerce in St. Louis to F. H. Smith Company on May 24th, and acceptance or payment thereof refused. On May 24th F. H. Smith Company, having bill of lading for this car, inclosed same to Louisville & Nashville agent here, instructing diversion from East St. Louis, Ill., to St. Louis Car Company, St. Louis. May 28th shipper instructed Nashville, Chattanooga & St. Louis and Louisville & Nashville to hold this car subject to instruction from shipper. Car ordered by Louisville & Nashville so held. May 29th car arrived at destination at East St. Louis, Ill. On May 29th F. H. Smith Company telegraphed Kennesaw Hardwood Lumber Company at Atlanta, Ga., as follows: `Will accept no more drafts or any more poplar. Stop. This is imperative.' On May 31st Mr. Creelman met Mr. Smith, as above stated, and some sort of settlement was reached. According to plaintiff, it covered this car; according to Kennesaw Hardwood Lumber Company, it did not cover this car. On June 6th this car, which had been held since May 29th, as instructed, subject to order from shipper, was, on the order of the shipper, diverted from East St. Louis to Steger, Ill., by the defendant.

"N. C. & St. L. 6552. Shipped from Atlanta, Ga., to East St. Louis, Ill., May 23, 1906, by Kennesaw Hardwood Lumber Company to F. H. Smith Company by way of Nashville, Chattanooga & St. Louis and Louisville & Nashville Railroad; bill of...