McNeill v. Wabash Railway Company

• Decision Date: 03 May 1921
• Citation: 231 S.W. 649,207 Mo.App. 161
• Parties: J. P. McNEILL, MARK L. McNEILL and A. H. McNEILL, a Partnership doing Business under the Name of J. P. McNEILL & COMPANY, Respondents, v. WABASH RAILWAY COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

231 S.W. 649

207 Mo.App. 161

J. P. McNEILL, MARK L. McNEILL and A. H. McNEILL, a Partnership doing Business under the Name of J. P. McNEILL & COMPANY, Respondents, v. WABASH RAILWAY COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

May 3, 1921

Appeal from the Circuit Court of Audrain County.--Hon. E. S. Gantt Judge.

AFFIRMED.

Judgment affirmed.

N. S Brown and A. C. Whitson for appellant.

(1) In the absence of fraud or mistake the written contract may not be varied or contradicted by parole testimony. Mistake to avoid the contract must be mutual, and not negligently made. Where one signs a contract knowing its terms, or without knowing or without making any effort to know its contents, he will not be permitted to vary or contradict on the ground of mistake, and parole evidence is inadmissible to piece out or modify it, or subtract from the essential elements of the writing. Avery Co. v. Powell, 174 Mo.App. 628; 2 Pom. Eq. Jur. (3 Ed.), sec. 856; Marshall Hall Grain Co v. Merc. Co., 211 S.W. 725; Demming Inv. Co. v. Wasson, 192 S.W. 764; Hall v. Railway, 209 S.W. 582; Mfg. Co. v. Carle, 116 Colo.App. 591; Crim v. Crim, 162 Mo. 544; Layson v. Cooper, 174 Mo. 211. (2) The carrier had the right to assume the consignee to be the owner, and when it was not found at the destination to deliver where found. Southern Express Co. v. Dickson, 94 U.S. 459, 24 L.Ed. 285; 1 Hutch. on Carriers, sec. 177; Smith, v. Railroad, 145 Mo.App. 394; Wichita Poultry Co. v. Railroad, 198 S.W. 83; 10 C. J., p. 249, n. 15. A delivery to and acceptance by the agent of the owner, releases the carrier from further liability. 10 C. J. 260, Sec. 373. Parker-Gordon Cigar Co. v. Railroad, 192 Mo.App. 86; Hardin Grain Co. v. Railway, 134 Mo.App. 681. (3) Whereby the negligence of the shipper or his agent the carrier is misled as to where or to whom delivery should be made, the carrier is excused from liability. The negligence of the agent of the shipper is the negligence of his principle and to permit a recovery against the carrier on account of the negligence of the agent, would be to permit the shipper to recover for his own negligence. 10 C. J. p. 267, sec. 380; M. K. & T. Ry. v. McFadin, 33 S.W. 853. (4) The plaintiffs by receiving the proceeds of the sale of the sheep from the consignee, waived the conversion by misdelivery, if such there was. The receipt of anything of value from the consignee out of the proceeds of the shipment or in payment for the goods, after notice of the facts on which the conversion is claimed, waives the conversion. The shipper cannot accept a part and repudiate a part. Woolston v. Railroad, 177 Mo.App. 611; Peoples Bank v. Railway Co., 192 Mo.App. 631; Hayes v. Wells Fargo Express Co., 206 S.W. 229; Nanson v. Jacob, 93 Mo. 344. By accepting the proceeds of the sale plaintiffs either recognized their consignee as the agent to make the sale, or accepted the proceeds in satisfaction of the wrongful act alleged, and waived all claim for conversion and are estopped to set up the conversion. Blowers & Co. v. Canad P. Ry. Co., 155 F. 935; Midland Linseed Co. v. Fire Proofing Co., 166 N.W. 573; Warehouse Co. v. Railway Co., 136 P. 34; 38 Cyc. 2042 & 2043, n. 44. (5) If the delivery to the consignee was unauthorized, the receipt of the proceeds ratified the unauthorized act. If a delivery and sale were unauthorized, the plaintiffs could have proceeded either against their consignee for conversion or against the defendant, and if against the defendant and a recovery was had, the defendant could have sued the consignee for the sheep or their value. Having elected to treat the title as passed by the sale of the consignee and accepting the proceeds, the fact may be set up as a complete defense by the consignee to any action of the defendant. Midland Linseed Co. v. Fire Proofiing Co., supra; Blowers & Co. v. Railway, 155 F. 937. If the delivery was unauthorized, the receipt of the proceeds by the plaintiff from the consignee ratified the unauthorized act. Nanson v. Jacob, 93 Mo. 345 and cases cited under Points 4 and 5. (6) By accepting the benefits, the proceeds, the plaintiffs ratified and affirmed the transaction and waived their right, if any, for conversion, and are estopped and precluded from setting it up, and such estoppel does not depend on any change in the position of the defendant. Having waived their claim they are precluded from setting it up in this action. Hector v. Mann, 225 Mo. 246, 247; Lawson v. Cunningham, 204 S.W. 1105. (7) The measure of damages, if there was a conversion, is the value at the destination designated in the contract of shipment, and if the destination was such as contended by the plaintiffs, there was a total failure of proof as to damages. Blackmere v. Railway, 101 Mo.App. 562; Peoples Bank v. Railway, 192 Mo.App. 624.

Abbott, Fauntleroy, Cullen & Edwards, for respondent.

(1) The failure of the defendant to deliver the sheep at the place it was directed to deliver them renders the carrier liable. Marshall & Michel Grain Co. v. K. C., F. S. & M. Ry. Co., 176 Mo. 491-492; Southern R. Co. v. Webb, 5 A. & E. Ann. Cas. 99; 10 C. J., sec. 384, p. 269; Cole v. Wabash etc. R. Co., 21 Mo.App. 443. (2) Through mistake and by reason of the failure of carrier's agent to write the contract as directed, or to change the body of it as he changed the outside, the written contract never became operative, and these facts may be shown in an action at law by oral testimony. Short v. Thomas, 178 Mo.App. 416-417; Barlow v. Elliott, 56 Mo.App. 374; Tapley v. Herman, 95 Mo.App. 543; Seiberling v. Tipton, 113 Mo. 373; Aetna Life Ins. Co. v. American Zinc, Lead & S. Co., 169 Mo.App. 550; 2 Williston on Contracts, p. 1227, sec. 634; Henn v. McGinnis, 165 N.W. (Iowa), 407; Fisher v. Trumbauer, 160 Iowa 263; Rathke v. Tyler, 136 Iowa 284, Zuspan v. Roy (Kan.), 170 P. 387; U. S. v. Charles, 74 F. 142; Rogsdale v. Turner (Iowa), 120 N.W. 109; Bleukiron v. Rogers (Neb.), 31 L.R.A. (N. S.) 127; Eldorado Jewelry Co. v. Dornell (Ia.), 133 N.W. 344; Indiana Railway Co. v. Fowler, 201 Ill. 152; 4 Am. & Eng. Ency. of Law (2 Ed.), 157; Alexander v. Bedford, 63 N.J. L. 307; 6 R. C. L., 41, 44; Western Roofing Tile Co. v. Jones, 26 Okla. 209; Cheney v. Eastern Transp. Line, 59 Md. 5661; Allen v. Chouteau, 102 Mo. 322; Green v. Cole, 103 Mo. 70; Aetna Ins. Co. v. Brannon (Tex.), 13 Ann. Cas. 1020, and note. (3) The plaintiff, having notified the carrier that it would claim damages from it, and by not accepting the proceeds of the sale in full of its claim, is not precluded from holding the carrier for a sum sufficient to cover his damages. Arrington v. Wilmington & Weldon R. R. Co. (N. C.), 72 Am. Dec. 559; Clark v. Chesapeake & O. Ry. Co. (W. Va.), 61 S.E. 364; McSwegan et al. v. Pennsylvania R. Co., 40 N.Y.S. 51; Johnson v. N. Y. Central (N. Y. Ct. of Ap.), 116 N.E. 1054 (affirming 148 N.Y.S. 1123); Louisville & A. R. Co. v. Hiram Blow & Co., 124 S.W. 392; L. Kemmel & Son v. Champlain Transp. Co., 105 A. 254; 1 Sedgwick on Damages, p. 88, sec. 55; 1 Sedgwick on Damages, pp. 92, 93, 94, sec. 58. (4) The evidence failed to show any intention on the part of plaintiff to release the carrier, and in the absence of such an intention the carrier is not released because the damages are lessened by accepting part of the proceeds from a third party. Lake Shore v. McIntyre (Ind. App.), 108 N.E. 981; Atlantic Coast Line R. Co. v. Dahlberg Brokerage Co. 54 So. 171; Kewanee Private Utilities Co. v. Norfolk Southern R. Co., 88 S.E. 100.

BRUERE, C. Allen, P. J., and Becker, J., concur. Daues, J., not sitting.

OPINION

BRUERE, C.

This is an action against the defendant, a common carrier, for alleged damages resulting to the plaintiffs by reason of the wrongful delivery by the defendant of certain live stock belonging to the plaintiffs. Plaintiffs recovered and defendant prosecutes the appeal.

The cause of action stated in the petition is as follows: "That on the 16th day of January, 1918, the plaintiffs delivered, and the defendant received, two hundred and eighteen head of sheep, being breeding ewes, which defendant agreed for in consideration of certain freight charges paid well and safety to carry from Mexico, Missouri, to St. Louis, Missouri, and at the latter place to deliver the same to the plaintiffs, or their agents or assigns; but the defendant, in violation of its said agreement and in total disregard of its duty as common carrier as aforesaid, so carelessly and negligently conducted itself in the premises that said property was not delivered to the plaintiffs, its agents or assigns, in St. Louis, Missouri, and that said defendant failed and neglected to deliver said property at its destination to the plaintiffs or to any one for them, but on the contrary the said defendant wrongfully diverted said stock to National Stock Yards, in the State of Illinois, and delivered them to a live stock commission firm, who were engaged in the business of receiving and selling such sheep for immediate slaughter, and that by reason of the delivery by the defendant of said sheep to said parties in the State of Illinois, and by reason of its failure not to deliver them to the point of destination, towit, St. Louis, Missouri, said breeding ewes and all of them were sold for immediate slaughter and were slaughtered, and that plaintiffs received on account of the sale and slaughter of said sheep the sum of seventeen hundred and ninety-nine dollars and eighty-one cents. That the total value of said sheep, as breeding ewes, was forty-three hundred and sixty dollars, and that by reason of the wrongful acts of the defendant above set forth plaintiffs were damaged in the sum of twenty-five hundred and sixty dollars and ninety cents. "

The answer...