Globe Express Co. v. Taylor

• Decision Date: 07 February 1916
• Docket Number: 8411.
• Citation: 61 Colo. 430,158 P. 717
• Parties: GLOBE EXPRESS CO. v. TAYLOR.
• Court: Colorado Supreme Court

158 P. 717

61 Colo. 430

GLOBE EXPRESS CO. v. TAYLOR.

No. 8411.

Supreme Court of Colorado

February 7, 1916

Rehearing Denied July 3, 1916.

Error to Mesa County Court; Walter S. Sullivan, Judge.

Action by the Globe Express Company against Andrew J. Taylor. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions.

In November, 1913, Andrew J. Taylor, defendant in error, ordered from the O'Fallon Supply Company, at Denver, a pump which the company shipped by freight C. O. D. over the Denver & Rio Grande Railroad to Whitewater, a station near Grand Junction, and prepaid the freight charges. At the same time the shipper drew a sight draft on Taylor for the purchase price, plus the freight, which it attached to the invoice and bill of lading. These were sent through the Globe Express Company, plaintiff in error, to G. L. Linscott, its agent who was also the station agent for the railroad company at Whitewater, with directions to deliver the bill of lading to Taylor upon payment of the attached sight draft. Before the express company could deliver the bill of lading, and the railroad company the freight to Taylor, it was necessary that he should pay the amount of the draft. The express agent would then turn over to Taylor the bill of lading, and, upon this being presented to the railroad company, it would deliver the freight to him. On Sunday the 23d, Taylor and his wife were at Grand Junction, where she phoned to Linscott about the shipment, and, upon being informed that it had arrived and of the amount necessary to be paid before it could be delivered, she asked whether he would accept her husband's personal check, and was informed that he could not accept personal checks in payment of freight, but wanted cash. The Taylors then remained in Grand Junction for the purpose of getting currency with which to pay the sight draft, and the next day, Monday the 24th, went to the Mesa County National Bank, of which Orson Adams was president, and where Taylor had some $6,000 on deposit. Taylor had commenced to write a check, when Adams asked him what he was going to do with the money, and, on being informed, remarked that it was not necessary to take the currency to Whitewater, saying:

'You don't need to do that, I will fix it. You don't need to take the money out there.'

Adams then had a telephone conversation with J. Stewart, the local railroad agent at Grand Junction, and requested him to arrange to have the freight released and delivered to Taylor saying that if he would bring the bill of lading to the bank the amount to cover the charges would be paid. After this conversation Adams turned to Taylor and said:

'All right, Andy, I will take your money, and you can get the freight.'

Taylor thereupon wrote his personal check for the amount, payable to the Mesa County National Bank, and delivered it to Adams. Contemporaneous with this transaction, and acting on this telephonic communication with Adams, the railroad agent at Grand Junction, with whom Adams had been conversing over the phone, sent the following telegram to Linscott at Whitewater:

'If you have shipt on hand for A. J. Taylor, please deliver and send bill to me for collection. Mesa County Bank will deliver B. L. to me for forwarding to you. J. Stewart.'

To which Linscott replied:

'To J. S.: I have the bill of lading here for the A. J. Taylor shipment. What I want is draft for $191.87 to take it up. G. L. L.'

The railroad agent then sent this wire:

'Agent Whitewater: If you will deliver ship. A. J. Taylor, will send you draft to cover. J. S.'

In reply to which Linscott telegraphed:

'Will deliver the shipment for A. J. Taylor your wire date. Please send me draft for $191.87 made out to R. F. Watkins, Actg. Treas., Globe Exp. Co. G. L. L.'

The latter message was received after business hours, and the next forenoon, Tuesday the 25th, the railroad agent at Grand Junction took the message to the bank and presented it to Mr. Adams, who, with the message before him, drew the following bank draft and handed it to the agent:

'Mesa County National Bank.

No. 84975.

'Grand Junction, Nov. 25, 1913.

'M. C. N. B.:

'Pay to the order of R. F. Watkins, Treas., $191.87 one hundred and ninety-one 87-100 dollars. (Not over two hundred $200.)

'Orson Adams, Prest.

'To First National Bank, Denver, Colorado.'

This was sent to Linscott, who received it on the 26th. The 27th was Thanksgiving Day, and on the 28th the Mesa County National Bank failed to open its doors. The draft went to protest and was never paid, and it is admitted there was no lack of diligence in its presentation. On the 25th, Taylor and his wife drove to Whitewater, and Linscott on the strength of the telegram that a draft would be sent him, delivered the freight. He learned on the morning of the 28th that the bank had failed, and immediately asked Taylor to return the goods or pay for the shipment, which Taylor refused to do. After receiving the draft drawn by the Mesa County National Bank, Linscott on the strength of it purchased a money order from the Globe Express Company at Whitewater to cover the amount due the shipper, sent it to the O'Fallon Supply Company, and forwarded the bank draft to the principal office of the express company at Denver. The express company, having paid the shipper, demanded reimbursement from Taylor, which was refused. It thereupon brought suit against him in the justice court, where the jury returned a verdict for the defendant. From this judgment an appeal was taken to the county court, where upon another trial the verdict was again for the defendant. The county court gave the following instructions:

'(1) This is an action brought by the Globe Express Company against the defendant, Andrew J. Taylor, to recover from defendant the sum of $191.87 due it, as it is claimed, for the delivery to the defendant of a certain bill of lading expressed to Whitewater through the plaintiff for the defendant, and which bill of lading, it is alleged, called for certain goods shipped to the defendant at Whitewater, and which was necessary to be obtained by the defendant before obtaining the goods.

'(2) If you find from the evidence that the defendant, Andrew J. Taylor, received the goods shipped to him at Whitewater, and that the bill of lading therefor was delivered up by the Globe Express Company to the railroad for said goods, and that the said bill of lading was sent to Whitewater on condition that the sum of $191.87 should be paid for it to the express company before being turned over, then you are instructed that the burden of proving payment is on the defendant, and he must show that he made payment by preponderance of the evidence.

'(3) Payment to the Mesa County National Bank at Grand Junction, or the agent of the Denver & Rio Grande Railroad Company at Grand Junction, is not a payment to the agent of the express company at Whitewater, unless you find from the evidence that the plaintiff authorized such payment. Payment may be made to the agent at Whitewater either by money or draft, provided you find the agent called for a draft, but you are further instructed that the issuance of the draft cannot be construed as payment until it was received and approved by the agent of the Globe Express Company at Whitewater; and, if you find from the evidence that it was not received at Whitewater until the 26th of November, 1913, and that within a reasonable time after its receipt, and while it was in possession of the agent, it was refused, and Andrew J. Taylor was notified by the said agent at Whitewater, then you should find that the draft did not operate as a payment of the said claim.

'(4) If you find from the evidence that the defendant, Andrew J. Taylor, called at the Mesa County National Bank on Monday, November 24, 1913, with the purpose of obtaining $191.87 for the purpose of taking it to Whitewater to pay for such cash shipment, and at Mr. Adams' request he turned the business over to him to arrange for the release of said shipment at Whitewater without any instructions being given by him to Adams as to the method he should pursue in securing the release of said shipment, then as a matter of law you are instructed that the defendant gave Mr. Adams unlimited authority to adopt such legal mode as he saw fit to secure the release of said shipment, and whatever Mr. Adams did in order to secure said release was the act of his principal, Mr. Taylor.

'(5) If you find from the evidence that G. L. Linscott, the agent of the Globe Express Company at Whitewater, on the 24th day of November, 1913, telegraphed J. Stewart at Grand Junction a message substantially as follows: 'Will deliver the shipment for A. J. Taylor your wire date pls send me draft for $191.87 made out to R. F. Watkins, actg treas Globe Express Co.,' and that Mr. Egger at Grand Junction presented the said message to the Mesa County National Bank on the following day and received a draft on the First National Bank of Denver for the sum of $191.87, then you are further instructed that the said J. Stewart or Mr. Egger had no authority to bind the agent at

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