Farwell v. Price

• Decision Date: 31 October 1860
• Citation: 30 Mo. 587
• Parties: FARWELL et al., Plaintiffs in Error, v. PRICE et al., Defendants in Error.
• Court: Missouri Supreme Court

30 Mo. 587

FARWELL et al., Plaintiffs in Error,

v.PRICE et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1860.

1. A. at St. Louis shipped flour consigned to B. in Boston. C. at New Orleans, to whom said flour was shipped to be forwarded by him in Boston, wrongfully converted the same. Held, in a suit brought by B. against C., that the measure of damages was the value of the flour at the place of destination.

Error to St. Louis Court of Common Pleas.

This was an action to recover damages for the wrongful conversion by defendants of two thousand and forty-seven barrels of flour belonging to plaintiffs. The cause was tried by the court without a jury, and the court, at the request of both parties, found a special verdict. The facts as found by the court in this special verdict were substantially as follows: About August 28, 1857, Merritt, Risley & Co., merchants of St. Louis, purchased a lot of flour containing two thousand and ninety-five barrels, and shipped the same to their factors, the plaintiffs, Farwell & Co., at Boston, via New Orleans, Louisiana, consigned to the care of defendants, Price, Converse & Smith. From the bills of lading taken by Merritt, Risley & Co. it appears that the flour was shipped to Price, Converse & Smith, at New Orleans, to be forwarded by them to the plaintiffs, the consignees, at Boston. At the time of purchasing said flour, Merritt, Risley & Co. had authority to draw on the plaintiffs against or upon actual shipments, and drew on them, on account of the above shipment, four bills of exchange amounting to $10,344, which were all accepted by the plaintiffs and have since been paid. There were no other bills drawn on account of this flour and accepted by any one. The flour went forward as far as New Orleans, arriving there early in September. Defendants received and forwarded forty-eight barrels thereof, but refused to receive and forward the residue, converting the whole to their own use. The manner of conversion was by causing the flour to be seized and attached at the suit of themselves as the property of Merritt, Risley & Co. The special verdict then proceeds to set forth the cost of the flour at St. Louis, its value at New Orleans at the time of the conversion, and its value in Boston if it had gone forward according to the bills of lading. Its value was less at New Orleans at the time of the conversion than it cost at St. Louis, or its value in Boston less the charges of transportation, fifty cents per barrel. At the time of the seizure of the flour by the defendants, they were creditors of Merritt, Risley & Co. in the sum of $2,652.13. At the same time defendants were under acceptance for the accommodation of Merritt, Risley & Co. in the sum of about $24,000, not then due. All of this indebtedness was on general account, and defendants had not advanced or accepted for Merritt, Risley & Co. on account of this flour or any part thereof. An agreement had been previously made between Merritt, Risley & Co. and defendants, by virtue of which Merritt, Risley & Co. gave to the defendants real estate security in the sum of $25,000 to secure them against loss by reason of advances or acceptances for Merritt, Risley & Co.

The court declared the law “to be that the plaintiffs are entitled to recover of the said defendants damages according to the value of the flour by defendants converted as aforesaid at New Orleans at the time of said conversion, with interest thereon from the time of conversion; and that the plaintiffs are not entitled to the Boston value of said flour, less the charges of conveying it thither, with interest as claimed by plaintiffs' counsel.” The court refused to give, as requested by plaintiffs, the value of the flour at Boston as the same would have been at Boston had it gone forward without any interruption, less the charges of conveying it thither.

The court refused the following instructions asked by the defendants: “1. If the jury find from the evidence that Merritt, Risley & Co., of St. Louis, shipped the flour in question to the defendants, to be by them forwarded to the plaintiffs at Boston, to be sold by the plaintiffs on account of the shippers; that said property was attached in New Orleans by the defendants for a debt due them by Merritt, Risley & Co., then plaintiffs can not recover. 2. If the jury find from the evidence that Merritt, Risley & Co., of St. Louis, purchased the flour in question on their own account, and shipped the same to the defendants at New Orleans, to be forwarded to plaintiffs at Boston and there sold on account of shippers; that said defendants refused to receive the said shipment, but caused the same to be attached for a debt due them from Merritt, Risley & Co., then the plaintiffs can not recover. 3. If the jury find from the evidence that Merritt, Risley & Co. purchased the flour in question and shipped the same to the plaintiffs at Boston to be sold on account of the shippers, then the plaintiffs can not recover in this action. 4. If the jury find from the evidence that Merritt, Risley & Co. purchased the flour in question and shipped the same to the plaintiffs at Boston to be sold on account of the shippers, then the plaintiffs can not recover in this action, unless they further prove that they purchased said flour before the institution of this suit. The court refuses to give this instruction and declares that if the shippers (M., R. & Co.) were authorized to draw on plaintiffs against said shipments, and did so draw, and plaintiffs accepted and paid said drafts, that these facts gave them such title to the property as to authorize them to maintain this suit. 5. If the jury find from the evidence that Merritt, Risley & Co. purchased the flour in question, and shipped the same consigned to defendants at New Orleans, to be forwarded by said defendants to plaintiffs at Boston, to be sold on account of Merritt, Risley & Co., then the plaintiffs can not recover. 6. If the jury find from the evidence that Merritt, Risley & Co., of St. Louis, purchased the flour in question on their own account, and shipped the same consigned to defendants at New Orleans, to be forwarded by said defendants to the plaintiffs at Boston, to be sold on account of the said Merritt, Risley & Co.; that said Merritt, Risley & Co., when said flour arrived at New Orleans, were indebted to said defendants; that said flour never came to the possession of said defendants until after the same was attached; that said flour was afterwards sold by virtue of said attachment at the city of New Orleans, then the plaintiffs can not recover in this suit. 7. Upon the evidence in this case the plaintiffs are not entitled to recover.”

The court gave judgment for the plaintiffs for $9,540.13, in accordance with its rulings as above set forth. Both parties sued out writs of error.

Gantt, for Farwell & Co.

I. As to whether plaintiffs are entitled to any judgment, see Holbrook v. Wright, 24 Wend. 169; Nesmith v. Dyeing, Bleaching and Calendering Co. 1 Court. 130; Gibson v. Stevens, 8 How. 384; Grove v. Brien, 8 How. 429.

II. The court declared an erroneous measure of damages. The property was wrongfully converted at New Orleans. It was confided to defendants' care as commission merchants. The plaintiffs at Boston were entitled to receive it there. Of this...