Jacobs v. Chicago, P. & St. L. R. Co.

• Decision Date: 04 June 1918
• Docket Number: No. 15125.,15125.
• Court: Missouri Court of Appeals
• Parties: JACOBS v. CHICAGO, P. & ST. L. R. CO.

204 S.W. 954

JACOBS v. CHICAGO, P. & ST. L. R. CO.

No. 15125.

St. Louis Court of Appeals. Missouri.

June 4, 1918.

Rehearing Denied June 19, 1918.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Ed Jacobs against the Chicago, Peoria & St. Louis Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

Douglass W. Robert, of St. Louis, for appellant. Sturdevant & Sturdevant and Chas. A. Powers, all of St. Louis, for respondent.

BECKER, J.

The question presented for the decision of this court necessitates the reproduction of plaintiff's original petition. Plaintiff brought this action in the circuit court of the city of St. Louis by filing the following petition:

"Plaintiff states that the defendant, Chicago, Peoria & St. Louis Railroad Company, is a railroad corporation duly organized and existing according to law, and that said railroad company has and maintains a business office in the city of St. Louis, Missouri.

"Plaintiff further states that heretofore, to wit, at various dates from September 10, 1913, to May 2, 1914, inclusive, as more particularly appears in the itemized account thereof hereinafter set out, he sold and delivered to the defendant numerous shipments of railroad cross-ties, 17 in all : that a duly itemized statement of the account of said transactions showing the dates of sale and shipments, the number of the cars upon which shipments were made, sale and invoice price per shipment, and amount of freight charges is as follows, to wit:

                                      "St. Louis, Mo., July 1, 1914
                

"Chicago, Peoria & St. Louis Railroad Company, to Ed Jacobs, Dr.

"For goods and material consisting of 17 shipments of cross-ties sold and delivered by Ed Jacobs to Chicago, Peoria & St. Louis Railroad Company.

                1913.      Car.                              Amt. Invoice. Freight
                Sept. 10   28018   M. P. ...................   $  232 80   $ 58 20
                 "    10   63273   Wab.  ...................      194 00     65 91
                 "    10   16306   M K & T..................      198 85    110 11
                 "    10    7879   DTI .....................      132 89     30 00
                 "    10   15263   PRR .....................       84 85      4 05
                 "    10  536020   P. L. ...................       80 03      4 42
                 "    20   21513   MP ......................      282 00     85 80
                Oct.  13   66904   IM ......................      133 50     49 06
                 "    24     404   NOGN  ...................      189 50     79 56
                 "    28   28943   DLW .....................      204 25      5 40
                 "    28   26767   NYCSTL ..................      166 25      4 52
                Dec.   3   84810   LV ......................      193 59      4 82
                 "     3   36824   ACL .....................      198 33      4 86
                 "     3   47721   B & M....................      207 67      5 29
                1914
                May    2   22050, 7183, 32371 ..............      678 04    213 69
                 "     2    5028, 1684 .....................      419 80    104 21
                                                               _________   _______
                                                               $3,596 35   $829 90
                               Less freight.................      829 90
                                                               _________
                               Balance due .................   $2,766 45
                

"Plaintiff further alleges that the invoice price of said cross-ties so sold and delivered aggregated the sum of $3,599.35; that the total freight charges and transportation of same was $829.90; that the defendant has paid the said freight charges in the amount aforesaid, leaving a balance due this plaintiff on said account of $2,766.45, which said balance is now due from defendant to plaintiff and wholly unpaid, the defendant after repeated demands by plaintiff having refused and still refuses to pay same, and the said balance bears interest at the rate of 6 per cent. per annum from the date of the last shipment, May 2, 1914.

"Wherefore plaintiff prays judgment against the defendant for the sum of $2.706.45, with interest thereon at the rate of 9 per cent. per annum from the 2d day of May, 1914, and costs of this action and all proper relief in the premises."

Thereafter plaintiff filed an amended petition. Subsequently plaintiff, by leave of court, was granted the privilege of amending his amended petition, and thereupon filed his second amended petition in five counts.

The first count of the second amended petition is on a written contract for 6,000 No. 2 cross-ties at 48½ cents per tie, and alleges that thereafter by a verbal agreement the price of said ties was changed to 47½ cents per tie; that plaintiff shipped 5,847 of said ties ; and that the reasonable value was $2,821.74. A credit is allowed on said account of $655.73 as freight charges paid by defendant, and a further credit of $1,180.80 is allowed as an amount paid on the account by the defendant, leaving a balance due of $1,140.94, for which judgment is asked. It is further alleged that this account had been assigned by and thereafter reassigned to, plaintiff.

The second count alleges that on the 5th day of September, 1913, the defendant ordered from the plaintiff, in writing, to be delivered to the defendant f. o. b. East St. Louis, Ill., 10,000 white oak crossing planks, 3"x 10"x16', at the price of $23.50 per 1,000 feet ; that on the 20th day of September, 1913, plaintiff delivered to the defendant at the place designated 300 pieces of planks as described, aggregating 12,000 feet, all of which planking was accepted by the defendant, and that said planking was fairly and reasonably worth $23.50 per 1,000 feet, aggregating $223. and allows defendant as a credit thereon $85.80, the total amount of freight which had been paid by the defendant, and alleges that there is still due the plaintiff from the defendant the balance of $196.20 which remains due and unpaid. There is also an allegation that the account had been assigned by and reassigned to the plaintiff.

The third count alleges that the defendant ordered from the plaintiff, in writing, 20 sticks of 20-foot white oak winter cut piling at 16½ cents per foot, and 20 sticks of 30-foot white oak winter cut piling at 17½ cents Per foot, and 20 sticks of 40-foot white oak winter cut piling at 19 cents per foot, all such piling to be subject to inspection at the loading point ; that on the 13th day of October, 1913, and on the 24th day of October, 1913, plaintiff delivered to the defendant the Piling described, which had theretofore been inspected at the loading point and accepted by the defendant; that said piling was reasonably and fairly worth and of the value above set out in the total sum of $323 ; that the total freight charges thereon was $123.62, which was paid by the defendant, and for which credit is given, leaving a balance due of 8194.38.

The fourth count alleges that the defendant on the 28th day of November, 1913, ordered from the plaintiff, in writing, to be delivered f. o. b. East St. Louis, Ill., 1,000, more or less, white oak ties at the price of 62½ cents per tie, that on December 3, 1913, plaintiff delivered to the defendant 728 ties as specified, which were duly accepted by the defendant, and that said ties were reasonably and fairly worth the agreed price of 62½ cents per tie, making a total of $454.99, which sum remains due and unpaid, and further alleges that...