Hamlin v. Carruthers

Decision Date24 November 1885
PartiesH. O. HAMLIN, Respondent, v. W. W. CARRUTHERS, Appellant.
CourtMissouri Court of Appeals

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed

JAMES P. DAWSON, for the appellant: Where there is an entire failure to prove the cause of action as alleged, there can be no recovery by the plaintiff unless he amend his petition to conform to the proof. Waldhier v. R. R. Co., 71 Mo. 514; Luckie v. R. R. Co., 67 Mo., 245; Edens v. R. R. Co., 72 Mo. 212; Price v. R. R. Co., Id. 414; Harrison v. R. R. Co., 74 Mo. 369. Only those issues raised by the pleadings can be tried. Issues can not be raised by the evidence and instructions. Ross v. Ross, 81 Mo. 84; Newham v. Kenton, 79 Mo. 382; Bullene v. Smith, 73 Mo. 151, 162; Glass v. Gelvin, 80 Mo. 297. And the plaintiff would in no event be entitled to recover in this case without amending his petition to conform to the proof. Buffington v. R. R. Co., 64 Mo. 246, and cases cited. In this case there is not a mere variance between the allegations and proof, but an entire failure of proof. Beck v. Ferrara, 19 Mo. 30; Waldhier v. R. R. Co., 71 Mo. 514. So far from defendant's act being an assertion of title it was a disclaimer of any sort of right or title, and amounted to nothing more than a delivery of the wheat to the party in whose care it was consigned. If Shirmer converted the property defendant is not chargeable with his tort. This was no conversion. 2 Hilliard, Torts, 40, § 8; Rogers v. Huie, 2 Cal. 571; Bigelow, Lead. Cas., Torts, 428, et seq.; Simmons v. Lillystone, 8 Ex. 431; Fouldes v. Willoughby, 8 Mees & W. 540; Sparks v. Purdy, 11 Mo. 226; Niemetz v. St. Louis Ag. & M. Ass'n, 5 Mo. App. 63. A right of action for the conversion of personal property is not assignable in this state. Rev. Stat., sect. 3462; Wallen v. I. M. R. R. Co., 74 Mo. 521; see, also, Sandeen v. R. R. Co., 79 Mo. 282.

F. M. ESTES, for the respondent: There was a conversion. Koch v. Branch, 44 Mo. 542; Williams v. Wall, 60 Mo. 318; Ireland v. Horseman, 65 Mo. 511. The bill of lading was assignable. Shultz v. Christman, 6 Mo. App. 339; Watson v. Hoosac T. Co. (No. 2597),--Mo. App.; Peck v. Ritchey, 66 Mo. 115; Barnes v. McMullins, 78 Mo. 274.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff is holder, through successive transfers, of a sight draft for three hundred and forty dollars, drawn by L. E. Whybark on the defendant, who was doing a commission business under the style of W. W. Carruthers & Co., together with a bill of lading for a car load of wheat shipped by Whybark from Gunn City, over the Missouri Pacific Railway, and consigned to the defendant at St. Louis, care of Shirmer & Co. The wheat was received at the Central Elevator in St. Louis, where the customary railway manifest was handed over, drawn in the name of the defendant, with no mention of Shirmer & Co., and an elevator receipt was made out in the same way. This receipt was brought to the defendant for indorsement to Shirmer & Co., and he so indorsed and returned it, having previously refused to accept the draft, which was thereupon protested for non-acceptance. Shirmer & Co. sold the wheat and paid the proceeds to one McCabe who, in the defendant's name, had contracted with Whybark for the shipment of the wheat. The petition charges the defendant with having sold the property and converted the proceeds to his own use, in derogation of the plaintiff's rights. The verdict and judgment were for the plaintiff.

The first petition and an amended petition were successfully demurred to, and the court gave the plaintiff leave to file a second amended petition within ten days. When this was filed, in accordance with the leave, the defendant moved to strike it out, because not filed instanter, as required by Revised Statutes, section 3539. The motion was overruled.

The case thus presented stands on a different footing from Beardslee v. Morgner (73 Mo. 22). There, a third amended petition had been filed, and the statute was peremptory that no additional petition should be admitted on any terms. Here, the law allowed a second amended petition, with a limitation only as to the time of filing. The court appears to have treated the statute as directory only, and not mandatory. But whether this be a correct view of the statute or not, the defendant is in no position to make the objection here. It does not appear from the record that he saved any exception to the granting of the leave, or to the filing of the amended petition, at the time. His first exception was taken to the refusal to strike out on his motion. Then, instead of standing on that exception, he put in an answer, and went into trial on the issues thus raised. Having thus stood by while the pleadings were being framed upon the court's order and then raised an issue for trial upon them, he can not be heard in an appellate court to say that the same pleadings should be treated as nullities. There is no ground for a reversal on this point.

It is objected that the petition fails to state a cause of action, in that it does not allege any connection between the draft and the wheat shipped. The petition avers “that on the day said Whybark billed and shipped said car load of wheat, as aforesaid, defendant was a commission merchant doing business in the city of St. Louis; * * * that on said above mentioned day said Whybark drew a sight draft, herewith filed, * * * the value of said car load of wheat shipped as aforesaid; that said Bank of Holden paid the amount of said draft to said Whybark; * * * that immediately said Bank of Holden forwarded said draft, with said bill of lading attached, to the city of St. Louis, and that said draft was presented to said defendant, and he refused to accept or pay the same,” etc. These allegations are, perhaps, not as explicit as they might have been made, but it is impossible to read them without inferring the needed connections from the context. The jury were instructed that, in order to a verdict for the plaintiff, they must find all those necessary connections satisfactorily proved. The defect, therefore, if it be one, is cured by the verdict. Rev. Stat., sect. 3582.

The defendant insists that there were no proofs sustaining the allegation that he had sold the wheat and converted the proceeds. The elevator receipt made out in the name of the defendant represented the wheat itself, and his indorsement and delivery of it to Shirmer & Company was a transfer of the property. When the transferees sold it and paid the proceeds to McCabe, this was a conversion for which the defendant was directly responsible, since, without his transfer, it could not...

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7 cases
  • State ex rel. Massman Const. Co. v. Buzard
    • United States
    • Missouri Supreme Court
    • December 11, 1940
    ...to strike and the void order overruling same. Liese v. Meyer, 143 Mo. 547; Ruecking Const. Co. v. Withnell, 269 Mo. 546; Hamlin v. Carruthers, 19 Mo.App. 567; Grymes Hardwood Mill & Lbr. Co., 111 Mo.App. 358; Nudelman v. Thimbles, 225 Mo.App. 553; Sanguinett v. Webster, 153 Mo. 343. Henders......
  • Burrton State Bank v. Pease-Moore Milling Co.
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    • Missouri Court of Appeals
    • April 1, 1912
    ...to the bank for the amount thereof. And the bank's right to maintain the suit is supported by ample authority in this state. [Hamlin v. Carruthers, 19 Mo.App. 567; Dickson Merchants' Elevator Co., supra; Flannery v. Coates, supra; Frazier v. Railroad, 104 Mo.App. 355, 78 S.W. 679; Bank v. S......
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    • Missouri Court of Appeals
    • April 1, 1912
    ...to the bank for the amount thereof. And the bank's right to maintain the suit is supported by ample authority in this state. Hamlin v. Carruthers, 19 Mo. App. 567; Dickson v. Merchants' Elevator Co., supra; Flannery v. Coates, supra; Frazier v. Railroad, 104 Mo. App. 355, 78 S. W. 679; Bank......
  • Kissick v. Kissick
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    • Missouri Court of Appeals
    • February 1, 1926
    ...to maintain an action for a conversion of the property which occurred before the assignment. 26 R. C. L. p. 1131, § 40; Hamlin v. Carruthers, 19 Mo. App. 567; Dickson v. Elevator Co., 44 Mo. App. 498. If the conveyance of the symbol, of the property transfers a cause of action for its prior......
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