McNeill v. Wabash Ry. Co.
| Decision Date | 03 May 1921 |
| Docket Number | No. 16249.,16249. |
| Citation | 231 S.W. 649,207 Mo. App. 161 |
| Parties | McNEILL et al. v. WABASH RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.
Action by J. P. McNeill, Mark L. McNeill, and A. H. McNeill, a partnership doing business under the name of J. P. McNeill & Co., against the Wabash Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.
N. S. Brown, of St. Louis, and A. C. Whitson, of Mexico, Mo., for appellant.
Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondents.
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, 218 head of sheep, being breeding ewens, which defendant agreed for in consideration of certain freight charges paid, well and safely to carry from Mexico, Mo., to St. Louis, Mo., 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, Mo. 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 Stockyards, 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 to deliver them to the point of destination, to wit, St. Louis, Mo., 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 $1,799.81; that the total value of said sheep, as breeding ewes, was $4,360, and that, by reason of the wrongful acts of the defendant above set forth, plaintiffs were damaged in the sum of $2,560.90."
The answer contains a general denial, and, in addition, pleads:
(1) That the sheep referred to in plaintiffs' petition were received and transported by the defendant under and subject to the terms of a written contract, whereby it was agreed between the plaintiffs and defendant that defendant should transport the sheep from Mexico, Mo., to the National Stockyards, at Illinois, and there deliver the same to the Woodson-Fennewald Commission Company, the consignee named in the contract; that defendant fully complied with the provisions of said contract and transported said sheep from Mexico, Mo., to the National Stockyards, Ill., and made delivery thereof to said Woodson-Fennewald Commission Company.
(2) That the plaintiffs appointed the said Woodson-Fennewald Commission Company its agents to receive and take delivery of said sheep at its destination and that the said commission company received the sheep, as the agent of the plaintiffs, and sold the same at the National Stockyards, Ill., for and on behalf of the plaintiffs, that the plaintiffs received the proceeds of said sale, and by so doing waived any right they had or may have had to have said sheep delivered at St. Louis, Mo., and that plaintiffs therefore were estopped from asserting their claim for damages set up in the petition.
In their reply, plaintiffs denied, under oath, that they executed the contract set up in the answer, and averred therein that they made a contract with the defendant to transport said sheep to the Independent Stockyards, St. Louis, Mo., and gave defendant directions in writing to that effect; that by mistake the agents of the defendant, in writing said contract, inserted the destination as National Stockyards, Illinois, but that said mistake was discovered before the sheep were shipped; and, being advised of its mistake the defendant corrected and agreed to correct said contract by making the destination independent Stockyards. The reply further admitted that the sheep were delivered wrongfully to the National Stockyards by defendant, and that thereafter, and by reason of said conversion, the sheep were sold by mistake, and plaintiffs received what they brought at said sale, to wit, $1,799.81, and which amount was $2,560.90 less than their real value.
The facts in this case are briefly as follows:
About the middle of January, 1918, the plaintiffs purchased from the firm of Mason & Carter 218 breeding ewes. The ewes had been bred and were to bring lambs the following April. The plaintiffs gave directions to Mason & Carter to ship the sheep from Mexico, Mo., to plaintiffs' home at Salem, Mo. Mr. Carter, a member of the firm of Mason & Carter, saw Mr. Richards, defendant's freight agent at Mexico, Mo., about shipping the sheep to Salem, Mo. Mr. Richards informed Mr. Carter that the sheep would have to be shipped to St. Louis, Mo., and then rebilled from St. Louis to Salem, Mo. Mr. Carter then communicated with Mr. E. L. Woodson, a member of the firm of Woodson-Fennewald Live Stock Commission Company, and told him he was billing two loads of sheep to plaintiffs at Salem, Mo., and that Mr. Richards would not bill them through to Salem, and requested Mr. Woodson to see a Mr. Clem, live stock agent for the defendant, and see if he could not get them shipped through to Salem without unloading them.
Mr. Woodson saw Mr. Clem, and was told by him to bill the sheep to the Independent Stockyards, St. Louis, Mo., and then rebill them over the Frisco to Salem. Mr. Woodson informed Mr. Carter what Mr. Clem had said, and Mr. Carter told him the sheep would be billed to the Woodson-Fennewald Commission Company at the Independent Stockyards at St. Louis, and then rebilled to Salem, Mo. Arrangements were made for Mr. Andrew McNeely, manager of the Woodson-Fennewald Commission Company, at the Independent Stockyards, St. Louis, Mo., to take charge of the sheep at the Independent Stockyards, and rebill them to Salem, Mo., to plaintiffs.
Mr. Carter then told Mr. Richards, defendant's freight agent, to bill the sheep to the Woodson-Fennewald Commission Company at the Independent Stockyards at St. Louis, Mo. Mr. Richards then prepared a live stock contract, to which was attached an offer of shipment, and which the plaintiffs were to sign. Mr. Carter noticed that the offer of shipment read "from Mexico, Mo., to St. Louis U. D.," and he told Mr. Richards he wanted the sheep to go to the Independent Stockyards, and asked him if the letters U. D. meant that they would be shipped to the Independent Stockyards. Mr. Richards replied that they did, and that they billed them on the U. D. track to go to the Independent Stockyards, St. Louis, Mo.
Mr. Carter further noticed that on the back of the contract were written the words "From Mexico, Mo., To Natl. Stockyards, Ill.," and he called Mr. Richards' attention to the mistake, and told him to bill the sheep to the Independent Stockyards; that if they went to the National Stockyards, to the Woodson-Fennewald Commission Company, the sheep would be sold for slaughter. He told Mr. Richards to correct the mistake. Mr. Richards promised to do so, and did change the contract on the back thereof, by scratching out the words "Natl. Stockyards, Ill.," and writing in lieu thereof the words "St. Louis U. D.," but failed to make the correction in the body of the contract.
The contract names the Woodson-Fennewald Commission Company consignee. Their name appears only on the back of the contract. Mr. Carter suggested that Mr. Richards write a new contract, but Mr. Richards assured him that the train crew would not see the contract, but would get the waybill. Mr. Carter thereupon executed the contract and offer of shipment on behalf of the plaintiffs.
The destination of the sheep, according to the waybill accompanying the shipment, was St. Louis U. D. The sheep were received for shipment by the defendant on the 16th day of January, 1918, and duly arrived at defendant's station at Bremen avenue, St. Louis, Mo. The Independent Stockyards are located at said Bremen avenue. The destination named in the original waybill, accompanying the shipment, was changed by defendant's agent at Bremen Avenue Station by writing on said waybill in blue pencil the words "National Stockyards." As to why this change was made, the evidence does not disclose.
The Woodson-Fennewald Commission Company were located at the National Stockyards, East St. Louis, Ill., but maintained a branch house at the Independent Stockyards, Bremen avenue, St. Louis, Mo., which was conducted for them by the McNeely & Son Commission Company. The sheep in question were not delivered to the Independent Stockyards, St. Louis, Mo., but were delivered by the defendant to the National Stockyards Company, at East St. Louis, Ill.; they were unloaded into their pens, and, a few hours after they received them, the...
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