J. L. Price Brokerage Company v. Chicago, Rock Island & Pacific Railways Company

• Decision Date: 04 April 1921
• Citation: 230 S.W. 374,207 Mo.App. 8
• Parties: J. L. PRICE BROKERAGE COMPANY, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

230 S.W. 374

207 Mo.App. 8

J. L. PRICE BROKERAGE COMPANY, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 4, 1921

Appeal from the Circuit Court of Buchanan County.--Hon. Lawrence A Vories, Judge.

AFFIRMED.

Judgment affirmed.

W. K Amick for respondent.

John E Dolman and Sam Wilcox for appellant.

OPINION

BLAND, J.

This is an action to recover damages for the misdelivery of a car of potatoes. Plaintiff recovered a verdict and judgment in the sum of $ 2272.44, and defendant has appealed.

The facts show that on April 24, 1917, plaintiff delivered to the receiver of defendant railway, who was then in charge of and operating the same, a car of potatoes at Minneapolis, Minn. to be shipped to Ottawa, Ill., under a shipper's order bill of lading. About the time the shipment was made a written delivery order was attached to a draft, which plaintiff drew upon Abraham and Company, Ottawa, Ill., for the purchase price of the potatoes, and deposited in the bank of Buchanan County at St. Joseph, Missouri. Thereafter said draft with delivery order attached was forwarded by said bank to a bank in Ottawa, Ill. The delivery order was addressed to the agent of the receiver at Ottawa, Ill., instructing him to deliver the potatoes to Abraham & Company at that place "on presentation of this order without surrender of the original bill of lading." On the same day that the order was drawn plaintiff wrote said agent at said place "this car is for Abraham & Company of your city, kindly notify them of arrival and allow them to inspect the same, but deliver car only upon presentation of written order signed by us." (Italics ours.)

Some controversy arose between plaintiff and Abraham & Company about the potatoes and much correspondence was had between the two but plaintiff never at any time consented that the potatoes should be delivered to Abraham & Company except upon the payment of the draft attached to the delivery order and presentation of the latter to the receiver. Plaintiff released the bill of lading without endorsement to the agent of the receiver at St Joseph, Missouri. Plaintiff's agent testified that he did this in order that the agent of the receiver could forward it to Ottawa, Ill., so that Abraham & Company could secure the delivery of the car by taking up the delivery order and surrendering it to receiver's agent at Ottawa. Defendant's evidence tends to show that there was a verbal order given the agent of the receiver at St. Joseph to deliver the potatoes to Abraham & Company but plaintiff's evidence tended to show the contrary. Thereafter on May 14, 1917, without any authority or consent of plaintiff, the agent of the receiver at Ottawa, Ill., delivered the potatoes to Abraham & Company and this suit resulted.

The petition seeks to make the defendant liable for the act of receiver. It pleads that at the time of the delivery of the potatoes to the receiver the defendant company was being operated by said receiver under an order of the District Court of the United States for the Northern District of Illinois; that on or about June 24, 1917, all of the property and effects of the defendant in the hands of the receiver was by that court--"turned back and surrendered to this defendant, upon an agreement by this defendant and the order of said court that the defendant was to take said property from said receiver and take over and assume the defense of all suits or litigations, to which the receiver could be made a party, and be liable to pay all obligations and judgments that said receiver would, or could, be liable to pay. That the cause of action herein sued on is one for which the receiver was originally liable to defend and pay. That said receiver was by said court, on June 24, 1917, discharged, and cannot be sued by plaintiff, and plaintiff's remedy is against the defendant herein."

The petition herein was filed on April 15, 1918. The answer was a general denial and a plea that the order of court turning back the property to the company provided that the claim sued on herein and other claims against the receiver should be enforced by presentment to a Special Master in Chancery and, unless they were filed before such Master prior to July 14, 1917, they should be barred unless thereafter allowed to be filed by separate order. The answer pleads that the Master published the notice in reference to the filing of such claim as provided by the order and that plaintiff failed to present its claim to said Master. Defendant offered an instruction in the nature of a demurrer to the evidence which was refused.

The facts show that the company was lifted of the receivership on June 12, 1917, and that the receiver was discharged on July 27, 1917. In order to procure the discharge of the receivership the reorganization committee of the defendant on May 27, 1917, made an offer to the court in which defendant herein agreed to perform certain things therein mentioned; said offer was contained in what is referred to in the proceedings as "subdivision A." Section 1 of subdivision A provides for the payment of receiver certificates and short term notes. Section 2 provides that defendant assume the payment of all money debts and money obligations incurred by the receiver in the operation of the railroad. Section 3 provides--

"All obligation and liability of the Receiver to perform, in accordance with their present terms or as hereafter modified, any and all contracts, undertakings and commitments made or adopted by the Receiver acting as such will be assumed."

Section 4 provides that sections 2 and 3 are made subject to an order of the court which should provide that any matters mentioned in said sections might be contested and the enforcement thereof by others might be defended to the same extent as the receiver himself could contest the same. Section 5 provides that defendant shall see that the compensation of the receiver is paid. Section 6 provides--

"The prosecution and defense on behalf of the Receiver, without cost or expense to him, of any and all actions, suits or litigations to which he is or may be a party will be taken over and assumed by the railway company, with the right, however, to control, continue or alter the policy of any such prosecution or defense, and with the further reservation that the payment of any final judgment in any action now pending or which hereafter may be rendered against the Receiver in any such action now pending shall be subject to such order as this court shall make relative thereto, either by way of reference to the Special Master heretofore appointed or otherwise."

Section 7 provides that the defendant shall indemnify and hold harmless the receiver against "all claims, demands, suits, actions, litigations, liabilities, damages, costs, expense or other matters whatsoever arising or accruing from all or any of his acts as Receiver." The decree of court accepting the offer of the re-organization committee and discharging the receiver, provided--

"9. . . . That the defendant railway company be and it is hereby authorized and required, but upon the conditions and reservations therein prescribed ,to make the several payments described in subdivision A of said offer, to the extent that they have not been paid or shall not have...