Globe Milling Company v. Minneapolis Elevator Company
| Decision Date | 21 July 1890 |
| Citation | 46 N.W. 306,44 Minn. 153 |
| Parties | Globe Milling Company v. Minneapolis Elevator Company |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from a judgment of the district court for Hennepin county, where the action was tried by Hooker, J., (a jury being waived,) and a dismissal ordered at the close of the evidence for plaintiff.
Judgment affirmed.
W. H Norris, for appellant.
Shaw & Cray, for respondent.
Action for the conversion of 500 bushels of wheat. At the trial after the plaintiff rested, the court dismissed the action. August 28, 1888, defendant contracted to sell and deliver to D. C. Moak & Co. four car-loads No. 1 hard wheat, the specific wheat not then being ascertained; but it was to be delivered in the future out of the mass of wheat in the defendant's elevator. August 31st, Moak & Co. contracted to sell and deliver to Griffiths, Marshall & Co. five car-loads of similar wheat, no specific wheat being ascertained; and on the same day the latter firm contracted to sell and deliver to plaintiff five car-loads of similar wheat, no specific wheat being ascertained. The plaintiff was doing business at Water-town, Wis.; the defendant was operating an elevator in Minneapolis; and D. C. Moak & Co. and Griffiths, Marshall & Co. were firms engaged in buying and selling grain in the same place. September 13th, defendant loaded four cars of the Chicago, Milwaukee & St. Paul Railway Company with No. 1 hard wheat at its elevator, including that containing the wheat in controversy. The cars stood on a railroad track that belonged to defendant, or to the St. Paul, Minneapolis & Manitoba Railway Company; but to which it belonged we consider immaterial. The latter company was accustomed to switch or transfer cars loaded with wheat at the elevator to whatever point on its transfer tracks the defendant might designate. The direction to switch or transfer was by means of what is called a "switching order," in writing or partly in writing and partly in print, signed by defendant and addressed to said railway company, requesting it to switch the cars designated in it to the place specified in it. On the 13th, after loading the four cars, the defendant issued its switching order, designating each car by its number, and an abbreviation indicating to what company it belonged, stating its contents, to wit, wheat; the shipper, to wit, defendant; the consignee, to wit, D. C. Moak & Co.; and its destination, to wit, the yard of the Chicago, Milwaukee & St. Paul Railway Company. Pursuant to this order the cars were taken by the switching company; and, although the evidence is not direct to the point, there can be little doubt that, at about 5 o'clock P. M. on the same day, it reached the yard of the Chicago, Milwaukee & St. Paul Railway Company. In this yard were several tracks, two of which were used by the St. Paul, Minneapolis & Manitoba Railway Company for leaving cars switched by it, intended to pass over the Chicago, Milwaukee & St. Paul Railway; and on these tracks the latter company took such cars, provided that, on inspection, they were found to be in good order, but not otherwise. There is nothing to show that of the four cars thus switched the one having the wheat here in controversy ever got further than one or the other of these two tracks, or that it was ever inspected or taken by the Chicago, Milwaukee & St. Paul Railway Company. Nothing further appears in respect to it until the 19th, when it was back at the elevator, and the wheat was then unloaded into the elevator. It is to be presumed that on that day the defendant caused the car to be brought back from the place where it was left by the switching company, and to be unloaded. On the 14th, defendant made out a bill against D. C. Moak & Co. for the four car-loads, and presented it to them on that day, and again on the 15th, payment of which was both times refused, -- the first time, on the ground that they had not sampled the wheat; the second time, on the ground that it had not been inspected. On the 17th the bill was again presented, with the bill for switching; and they gave their checks for them, and the collector who presented them receipted the bills. On presentation the checks were dishonored for want of funds. On the 14th, D. C. Moak & Co. presented a bill for the wheat in controversy to Griffiths, Marshall & Co., describing it as in the car in question, and the bill was paid; and the former gave the latter a written order on the agent of the Chicago, Milwaukee & St. Paul Company for the wheat. On the same day the latter firm sent to plaintiff a shipping-bill for three car-loads of wheat, including that in question, over the Chicago, Milwaukee & St. Paul Railway, and drew a draft for the price, which was paid on the 18th.
There was no express evidence whether the sale from defendant to D. C. Moak & Co. was for cash or on time. It must be presumed to have been for cash on delivery.
There were some rulings of the court below excluding evidence offered by plaintiff assigned as errors; but as the evidence, had it been admitted, would not have materially varied the facts as we have stated them, it is unnecessary to consider those rulings, except one hereafter referred to.
Plaintiff claims that the case comes within the rule laid down in Cochran v. Stewart, 21 Minn. 435, that in case of the sale and delivery by the owner of personal property, although he may have been induced to make such sale and delivery by fraudulent acts and representations of the vendee, the latter may convey a good title to a bona fide purchaser, -- a rule founded on the proposition that, of two persons, one of whom must suffer by the wrongful act of a third person, he who has put it in the power of such third person to do the wrong must be the sufferer. The only way in which the rule could apply to the case would be upon the fact that, without exacting payment of the price, the defendant delivered the wheat to D. C. Moak & Co....
To continue reading
Request your trial