Hartford Mining Co. v. Tabor

• Decision Date: 26 October 1929
• Docket Number: No. 4573.,4573.
• Citation: 21 S.W.2d 207
• Parties: HARTFORD MINING CO. v. TABOR.
• Court: Missouri Court of Appeals

21 S.W.2d 207

HARTFORD MINING CO. v. TABOR.

No. 4573.

Springfield Court of Appeals. Missouri.

October 26, 1929.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by the Hartford Mining Company against P. E. Tabor. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

M. R. Lively, of Webb City, for appellant.

Grayston & Grayston, of Joplin, for respondent.

COX, P. J.

Action to recover the value of certain mining machinery, which, it is alleged, defendant has failed to account for after it had been delivered by plaintiff to him under a contract creating the relation of bailor and bailee between them. Judgment went for plaintiff, and defendant appealed.

The contract between the parties, plaintiff and defendant, was to the effect that plaintiff placed in the possession of the defendant certain mining machinery which defendant was to sell and receive as compensation therefor 10 per cent. of the sale price. The property was delivered to defendant and placed in his warehouse. Some of it was sold and the proceeds, less 10 per cent., paid to plaintiff. One electric motor was returned to plaintiff. The trial court found that other portions of the machinery were not accounted for by defendant, and found against him for its value, and rendered judgment therefor in the sum of $1,476.07, and added thereto interest in the sum of $743.38, making a total of $2,219.45.

The plaintiff relied upon the proposition that the defendant held the property as bailee, and that it made out its case when it had proven the contract, the delivery to defendant of the property, and defendant's failure to account for the property on demand. The defendant contends that the contract was not one of bailment, but only of agency, and for that reason recovery could not be sustained, without proof of negligence on the part of defendant, resulting in loss of the property. As we construe the contract, it was one of bailment. Weir Plow Co. v. Porter, 82 Mo. 23, 29; Packard Piano Co. v. Williams, 167 Mo. App. 515, 519, 151 S. W. 211.

In bailment cases like this, where the property is placed in the exclusive possession of the bailee, and is lost or injured while in his exclusive possession, the ground of recovery is negligence; but the rule of res ipsa loquitur applies, and all plaintiff is required to prove, to make a prima facie case, is to prove the contract of bailment, the delivery of the property to defendant under the contract, and, in case of loss of the property, the failure of defendant to account for it on demand. The burden is then shifted to defendant to show that the loss of the property was without his fault. Freeman v. Foreman, 141 Mo. App. 359, 125 S. W. 524; Cothren v. K. C. Laundry Service Co. (Mo. App.) 242 S. W. 167. That rule seems to have been recognized by the trial court and followed in this case, and we find that it was properly applied to all the articles of machinery except one. There was one 100 H. P. motor, which the court valued at $981, to which we think the rule above stated does not apply. This 100 H. P. motor needed certain repairs before it would be in condition to be sold. It was taken by defendant to a repair shop of good...