Garrison v. Babbage Transp. Co.

• Decision Date: 06 February 1888
• Parties: Garrison, Appellant, v. The Babbage Transportation Company et al
• Court: Missouri Supreme Court

6 S.W. 701

94 Mo. 130

Garrison, Appellant, v. The Babbage Transportation Company et al

Supreme Court of Missouri

February 6, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Affirmed.

Edw Cunningham, Jr., for appellant.

Defendants join in a pleading which they call their joint and several demurrer. It is a joint pleading going to the merits, and should have been overruled, if the petition was good against either of them. Wilkerson v. Rust, 57 Ind. 172. The petition states a cause of action. Both defendants were directly liable to the consignee. Redfield on Carriers, sec 259. They were bound to carry and deliver the iron, because both had received it for that purpose. Besides this, the St. Louis and New Orleans Company was liable to the consignee because of its assumption of all the contracts and liabilities of the Babbage Company. Defendants were bound for the delivery of the iron on the landing to plaintiff and plaintiff was bound for its delivery to the iron company. The duties of the plaintiff and the defendants were identical and the measures of damages for the breach of those duties were also identical. Plaintiff directed defendants to deliver to his vendee and they undertook and pretended to do so. Defendants could not discharge their liability to plaintiff by showing that they delivered all the iron they received at New Orleans, because plaintiff having purchased on the faith of their bill of lading, they are estopped to deny its correctness. Ryle v. Railroad, 42 Conn. 579; Byrne v. Weeks, 7 Bosw. 372; Redf. on Carriers, sec. 249; Howard v. Tucker, 1 B. & Ad. 712; Cox v. Patterson, 30 Ala. 608; Armour v. Railroad, 65 N.Y. 111; Bigelow on Estoppel [3 Ed.] 84; Heiser v. Hatch, 36 N.Y. 614; Kip v. Brigham, 6 Johns. 158; Clark v. Carrington, 11 U.S. 308; Inhabitants v. Holbrook, 9 Allen, 117. These defendants having had notice of the suit of the iron company against plaintiff and opportunity to defend it, and to appeal from the judgment rendered, are bound by that judgment, and are liable to plaintiff, as for money paid to their use, for all sums plaintiff has been compelled to pay by reason of the suit. Bigelow Estop. 84; 1 Greenleaf Evid., secs. 522, 523, 525; Whittaker v. McCormick, 6 Mo.App. 114; Strong v. Ins. Co., 62 Mo. 289; Wood v. Ensel, 63 Mo. 193; Gantt v. Ins. Co., 68 Mo. 503; S. C., 4 Mo.App. 7; Chicago v. Robbins, 2 Black, 418; Lovejoy v. Murray, 3 Wall. 1; Robbins v. Chicago, 4 Wall. 657; Veazie v. Railroad, 49 Me. 119; Portland v. Richardson, 54 Me. 46; Littleton v. Richardson, 34 N.H. 179; Conger v. Chilcote, 42 Ia. 18; Harvie v. Turner, 46 Mo. 444; Heiser v. Hatch, 86 N.Y. 614; Kip v. Brigham, 6 Johns. 158; Clark v. Carrington, 7 Cranch, 308; Inhabitants v. Holbrook, 9 Allen, 17.

Given Campbell for respondents.

(1) The point that the demurrer, being joint and several, should have been overruled, if the petition was good as to either of the defendants, cannot be seriously urged in this state. The statute provides that, "two or more defendants, making the same defence, shall answer jointly." R. S., sec. 3523. The cases cited to sustain the point that defendants are estopped from denying the correctness of the bill of lading do not bear out that proposition. Pollard v. Vinton, 105 U.S. 7; Schooner v. Buckingham, 18 Howard, 182; Hutchinson on Carriers [Ed. 1880], sec. 122, 123, 124; Bank v. Lavielle, 52 Mo. 380. The next point made in the brief of appellant is, that the defendants, having had notice of the suit, and opportunity to defend it, should be bound by the judgment and liable to plaintiff, as for money paid to their use, for all sums plaintiff has been compelled to pay by reason of this suit. This does not state the rule correctly. The rule, as laid down by our Supreme Court, is as follows: "Where one is bound to protect another from a liability, he is bound by the result of a litigation to which such other is a party, provided he had notice of the litigation and an opporunity to manage and control it." Strong v. Ins. Co., 62 Mo. 289. (2) The petition states no cause of action. (a) If plaintiff, by his petition, intended to sue the Babbage Company upon its contract of affreightment, he should have alleged this contract, set out its terms, and filed the bill of lading with the petition, and alleged the breaches of said contract. (b) If the plaintiff intended to set out a cause of action founded in tort for his damages arising from a false bill of lading, then a fraudulenter and a scienter should have been alleged, and as the petition is deficient in these matters it was properly held bad by the court a quo. (c) If it was the intention of plaintiff to hold the Babbage Transportation Company liable "over" to the plaintiff, then it is not a good petition (even if it were not otherwise deficient as hereinbefore stated), for the issues were not identical. Where the pleadings show that there is any doubt of the identity of the issues or causes of action, such action does not lie. Spurlock v. Railroad, 76 Mo. 67; State ex rel. v. Boothe, 68 Mo. 552; Railroad v. Elmore, 53 N.Y. 624; Russell v. Place, 94 U.S. 608; Cromwell v. County of Sac, 94 U.S. 351; Packet Co. v. Sickels, 5 Wall. 592; Miller v. McManus, 57 Ill. 126; Yeates v. Briggs, 95 Ill. 79; Hanna v. Reade, 102 Ill. 596; 1 Greenleaf Evid., secs. 528, 529. The findings upon matters not involved or litigated are not conclusive. Beckwith v. Thompson, 18 W.Va. 103; Yeates v. Briggs, 95 Ill. 83; Freeman on Judgments, sec. 257. Such judgments are also not conclusive as to matters collaterally involved. 2 Phillips Evid. 4; Freeman on Judgments, sec. 258; 1 Greenleaf Evid., secs. 528, 529.

Norton, C. J. Judge Sherwood, absent.

OPINION

Norton, C. J.

This case is before us on plaintiff's appeal from the action of the circuit court of the city of St. Louis in sustaining a demurrer to his petition. The substantial averments of the petition are as follows: That defendants are corporations, and at the dates mentioned, were common carriers of goods from the city of New Orleans to the city of St. Louis; that, about the thirteenth of December, 1879, the firm of Minnegerode & Berl, at the city of New Orleans, delivered to the Babbage Transportation Company, 985 tons, 9 cwt., 7 lbs., of old railroad iron belonging to said firm, to be safely carried from New Orleans to St. Louis, and there to be delivered to said firm or its assigns; that said Babbage Transportation Company then received and took charge and possession of said iron, for the purpose aforesaid, and promised and undertook, in consideration of freight to be paid it, to so carry and deliver said iron; and therefor did then issue and deliver to said firm its bill of lading, wherein was recited the receipt by it from said firm for said purpose of 985 tons, 9 cwt., 7 lbs., of old railroad iron.

The petition then states that afterwards, about the nineteenth of December, 1879, and while said iron was in the hands of said Babbage Transportation Company, its officers, directors, and stockholders caused the defendant, the St. Louis and New Orleans Transportation Company to be organized and incorporated as its successor, with the same stockholders, directors, and officers; that all the capital stock of the new company was gratuitously issued as full paid to the old stockholders in proportion to their respective shares in the old company, and that, immediately thereafter, about the second of January, 1880, said stockholders, officers, and directors, acting for both companies at the same time, transferred and delivered over, and caused to be transferred and delivered by the old company to the new, all the property, franchises, rights, contracts, and business of the old company; that, in consideration thereof, said new company (St. Louis & New Orleans Transportation Company) assumed all obligations, contracts, and liabilities of the old company, which liabilities were less in amount than half the value of the property so transferred; that, besides such assumption, no consideration was given for the transfer; that, in pursuance of the transfer and assumption, the new company, about the second of January, 1880, took charge and possession of all the property, franchises, rights, contracts, and business of the Babbage Company, and without the consent or knowledge of Minnegerode & Berl, or of plaintiff, took charge and possession of the aforesaid lot of iron, till then at New Orleans in the hands of the old company, to be carried by the new company, under the aforesaid bill of lading, and to be delivered as was therein provided.

The petition then states that, after delivery of the iron to the old company, and before its...