Jones v. Evans

• Decision Date: 31 January 1876
• Parties: SEBURN JONES, et al., Defendants in Error, v. CHARLES O. EVANS, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

62 Mo. 375

SEBURN JONES, et al., Defendants in Error,

v.CHARLES O. EVANS, et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1876.

Error to St. Louis Circuit Court.

B. A. Hill, for Plaintiffs in Error.

I. Warehouse receipts are negotiable by endorsement thereon. (Wagn. Stat., 220.)

The holder of those receipts is the owner of the goods in law. and the warehouseman is liable always to deliver the goods to the holder of the warehouse receipt.

II. The plaintiffs must tender the amount of the advances to the assignee with the cost and expenses; get the warehouse receipts and file a bill to enjoin the judgment that I see no way of preventing, and I do not know if they can get any remedy that way.

Broadhead, with Broadhead & Overall, for Defendants in Error.

I. The warehouse receipts were not negotiated but only fell into the hands of the assignee under an assignment, made to him by virtue of the laws of Missouri.

II. This property can be surrendered without the delivery of the warehouse receipts. (Wagn. Stat., 221 § 10.)

III. If it appears defendant has only a special interest in the property, as against the plaintiff, the value of the interest of the defendant in the property should be assessed, and judgment should be rendered for defendant for the value so assessed, or return of the property until such amount be paid at defendant's option. (Dilworth vs. McKelvy, 30 Mo., 149; Frei vs. Vogel, 40 Mo., 149; Gillham vs. Kerone, 45 Mo., 489; Nelson vs. Luchtemeyer, 49 Mo., 59.)

HOUGH, Judge, delivered the opinion of the court.

This was an action under the statute, regulating the claim and delivery of personal property, to recover the possession of thirty-eight hogsheads of leaf tobacco. It appears from the record that in the fall of 1873, the plaintiffs, who were dealers in tobacco at Moberly, agreed to sell to one Patrick Keller sixty-two hogsheads of tobacco in the leaf, at eight and three quarter cents per pound, to be paid for and received by Keller at Moberly. It was subsequently agreed by the parties that the tobacco should be shipped by rail to Sterling Price & Co. at St. Louis, who were to hold the same as agents for the plaintiffs, and not deliver it to Keller until it was paid for by him, at the rate of eight and three quarter cents per pound, free from any charge or expense. Keller was also to pay the freight and all charges thereon to Price & Co., so that the plaintiffs should be at no expense whatever on account of the tobaceo. Price & Co. were engaged at the time, as brokers and commission merchants, in buying and shipping tobacco for Keller, and received the tobacco in question with knowledge of the agreement between plaintiffs and said Keller, and acceded to the same. After the tobacco reached St. Louis, Keller received and paid for twenty-three hogsheads, which were accounted for by Price & Co. to the plaintiffs. Keller declined to take any more of the tobacco, and left the United States and returned to his home in Ireland, which facts Price & Co. communicated to the plaintiffs. Plaintiffs came to St. Louis to receive the thirty-nine hogsheads remaining in their possession, and were informed by them that they had sold one hogshead to other parties, and that the remaining thirty-eight were stored in defendant's warehouse; that they had made a voluntary assignment under the laws of the State of all their firm assets to George J. Davis, for the benefit of their creditors, and that the warehouse receipts issued to them by the defendants, who were warehousemen, had been delivered to said Davis, together with all the papers of the firm, but that said receipts had neither been sold, pledged nor disposed of by them to said Davis, or to any other persons. From the 10th to the 13th of September, 1873, Sterling Price & Co. remitted by letter to the plaintiffs the sum of $3,000, on account of said tobacco. These letters are called for in the bill of exceptions, but they are not copied into the record and are not before us.

Prior to the institution of this suit, plaintiffs demanded the warehouse receipts from Sterling Price & Co., and also from Davis, but they were not delivered to them; they also tendered to the defendants all charges due to them as warehousemen on account of the tobacco or its storage, and demanded that the tobacco be delivered to them, but the defendants refused to receive payment of their charges or to deliver the tobacco, unless the warehouse receipts were returned to them, which receipts defendants at the time knew were in the possession of said Davis as assignee of S. Price & Co. Price & Co. paid the sum of $309.15 for freight and drayage on said tobacco and had received from Keller on account of tobacco and the freight thereon, the sum of $2,737.00, and plaintiffs did not pay, or offer to pay, to S. Price & Co., or to their assignee any sum of money whatever. The property was taken from the possession of the defendants and delivered to the plaintiffs by the sheriff, who, at the time of the seizure, paid to the defendants the amount of their bill and took their receipt therefor. It is admitted, that the assignee Davis, after the institution of the present suit, instituted suit against the defendants upon the thirty-eight warehouse receipts claiming from them the full value thereof.

The case was tried by the court without the aid of a jury, and the following declarations of law were given at the instance of the plaintiffs:

1. “Plaintiffs ask the court to declare the law to be, that if plaintiffs owned a quantity of tobacco and sold or contracted to sell the same to Patrick Keller, he agreeing to pay cash therefor and receive the same, the tobacco in question being a portion thereof, and the tobacco was thereupon placed by plaintiffs in the possession of Sterling Price & Co. as their agents, to be held for them until paid for by said Keller, and to be then delivered to him, and that he failed to pay for or receive the tobacco in question in any reasonable time, but abandoned the purpose of paying for and receiving the same, and Sterling Price & Co. as plaintiffs' agents deposited it in the possession of defendants for safe keeping only; and if before this suit was commenced plaintiffs offered to pay to defendants the amount of their charges and claims on the tobacco, and requested that they deliver possession of the tobacco to plaintiffs, and that they refused to receive payment of such charges or claims, and refused to deliver possession of the tobacco to plaintiffs, then plaintiffs were entitled to possession of said tobacco and should have judgment therefor.”

2. “The court declares the law to be, that if plaintiffs were the owners of the tobacco in question, or entitled to the possession thereof as stated in the foregoing instructions, then the facts that Sterling Price & Co. had possession thereof as plaintiffs' agents, while holding the same for plaintiffs as their agents deposited it in the warehouse of defendants, and took the warehouse receipts in evidence therefor, and that at the time this suit was commenced such receipts were held by Sterling Price & Co., or by George J. Davis as their assignee under the deed of assignment in evidence, and that they are still so held, do not constitute a defense to this action.”

3. “If Patrick Keller contracted with plaintiffs to purchase the tobacco from them, and agreed that the same should be sent by plaintiffs to Sterling Price & Co., so that plaintiffs should be at no expense...