Meriwether v. Quincy, O. & K. C. R. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Goode
• Citation: Meriwether v. Quincy, O. & K. C. R. Co., 107 S.W. 434, 128 Mo. App. 647 (Mo. App. 1908)
• Decision Date: 21 January 1908
• Parties: MERIWETHER v. QUINCY, O. & K. C. R. CO.

107 S.W. 434

128 Mo. App. 647

MERIWETHER v. QUINCY, O. & K. C. R. CO.

St. Louis Court of Appeals. Missouri.

January 21, 1908.

1. PARTNERSHIP — DEATH OF PARTNER — ACTIONS — ABATEMENT AND REVIVAL — CONTINUANCE BY PARTNER.

Where one of two plaintiffs who are partners dies pending suit, the action may be continued in the name of the surviving partner without his giving bond or qualifying as administrator of the partnership estate, if his rights are not defeated by the administrator of the deceased partner qualifying as administrator of the partnership estate, since independent of this statutory mode of administering partnership assets the surviving partner has a common-law right to hold title to said assets and collect them.

2. SAME — PRESUMPTIONS.

Where one of two plaintiffs who are partners dies pending suit, and the action is continued in the name of the surviving partner, it is presumed that his rights as surviving partner continued intact; it not being shown that the administrator of the deceased partner qualified as administrator of the partnership estate so as to defeat the right of the surviving partner to continue the suit.

3. CARRIERS — CARRIAGE OF LIVE STOCK — FURNISHING CARS — SUFFICIENCY OF EVIDENCE.

In an action for breach of contract to furnish cars, evidence considered, and held sufficient to show that plaintiff entered into the several verbal contracts with defendant's agent as declared on.

4. SAME — AUTHORITY OF STATION AGENT.

A station agent appearing to be clothed with the usual powers of such agent may make a valid contract with a shipper to furnish stock cars at a stated time, in the absence of knowledge of the shipper of any limitations on the agent's authority, and in view of the fact that the course of dealing between the same parties recognized such contracts as valid.

5. SAME — BILLS OF LADING — AUTHORITY OF AGENT.

A clause in a bill of lading reciting that agents of the carrier were "not authorized to agree to forward live stock to be delivered at a specified time, nor for any particular market," is not a limitation of the power of a station agent to agree to furnish cars and receive freight for shipment on a particular date, but is merely notice to the shipper that the agent had no power to bind the carrier absolutely to deliver a car load of stock on a particular date.

6. SAME.

A bill of lading reciting that the agents of a carrier were not authorized to agree to forward live stock to be delivered at a specified time, nor for any particular market, taken in connection with the further clause that the carrier did not agree to so deliver live stock, was meant to save the carrier from liability for unavoidable delay, but did not excuse the company from carrying the freight in a reasonable time, nor for delays avoidable by care and diligence.

7. SAME — DEFENSES.

Where a verbal agreement is made between a shipper and a carrier to furnish stock cars at a certain time, and to deliver immediately, and this agreement is breached by the carrier, the shipper does not, by subsequently shipping his goods in a car furnished by the carrier, and taking a bill of lading reciting that the carrier does not agree to deliver the stock at destination at any specified time, preclude himself from recovering damages for the breach of the oral agreement.

8. SAME.

Where a verbal agreement is made between a shipper and a carrier to furnish stock cars at a certain time and to deliver the stock immediately, and a bill of lading is executed while the oral contract is unbreached and still executory, reciting that the carrier does not agree to deliver the stock at destination at any specified time, the verbal agreement is merged in the bill of lading.

9. SAME — SPECIAL CONTRACT TO FURNISH CARS — DEFENSES.

It is no defense to an action for breach of an agreement to furnish cars at a specified time that the carrier was unable to furnish such cars on the date agreed on by reason of heavy traffic, and portions of the answer alleging such defense are properly stricken.

10. SAME — PLEADING — FRIVOLOUS DEFENSE — STRIKING OUT.

Where the petition in an action against a carrier for breach of an agreement to furnish cars at a specified time contains a count seeking to recover for damages to the shipper from delays in transit, the defense that the carrier was unable to furnish the cars as agreed on because of the press of business as to such count is wholly irrelevant, and properly stricken.

11. SAME.

It is no defense to an action for breach of a verbal contract to furnish cars that the shipper failed to give written notice of his claims for damages within 10 days, as provided by the bill of lading under which the stock was shipped subsequently to the breach of the oral agreement, and such defense is properly stricken from the answer.

12. SAME.

Where a petition seeks damages for injuries to live stock occurring during a delay in transit, it is a good defense to the action that the shipper failed to comply with the bill of lading under which the stock was shipped, requiring a written claim for damages to be made within 10 days after delivery of the shipment, unless there was some good reason for failure to make the claim, and such defense was erroneously stricken from the answer.

13. EVIDENCE — HEARSAY — DOCUMENTS.

Where a witness testifies by reading from documents to things of which he has no personal knowledge, nor any knowledge that the documents state the facts correctly, the evidence is inadmissible as hearsay.

14. WITNESSES — EXAMINATION — REFRESHING MEMORY.

An experienced dealer in live stock, familiar with the price of hogs at the stockyards on certain days, may refresh his memory by reference to quotations in a live stock journal covering such days in testifying as to the value of hogs.

15. EVIDENCE — HEARSAY — EVIDENCE FOUNDED ON HEARSAY — MARKET REPORTS.

Quotations in a live stock journal as to the price of stock are inadmissible to show their value as original evidence, where there is no prior proof that they were accurate.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by Joseph W. Meriwether and another against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff Joseph W. Meriwether, defendant appeals. Reversed.

J. G. Trimble, for appellant. Balthrop & Smith, for respondent.

GOODE, J.

Joseph W. Meriwether is the surviving partner of the firm of Meriwether & Hunolt, which was originally composed of plaintiff and Joseph Hunolt, who was living at the time this action was instituted and was joined as coplaintiff with Meriwether, but, having died during the progress of the cause, it was continued in the name of Meriwether as the surviving member of the firm. Three distinct causes of action are declared on in as many counts or paragraphs of the petition; each cause of action being based on a separate contract alleged to have been entered into by the firm of Meriwether & Hunolt with defendant's station agent at Edina, Mo. The facts of the first two counts are so similar as to call for the application of the same rules of law, and the counts may be considered together; but the case stated in the third count rests on dissimilar facts. The purpose of the first two counts is to recover damages for alleged breaches of two contracts made by said firm in its own behalf with said station agent in behalf of the railroad company. According to the first count the agent, on December 14, 1903, agreed, in consideration of said firm delivering a car load of hogs for shipment over defendant's line, to furnish a stock car at Edina on the morning of December 16th early enough to be loaded with hogs on said day for carriage to the National Stockyards at East St. Louis, and further agreed to ship the hogs immediately over defendant's railroad and connecting lines so they would arrive at destination in time to be sold on the market of December 17th. It is alleged that said station agent, whose name was Thornton Alexander, had full power, as agent of the railway company, to make said contract in its behalf; that pursuant to the contract so entered into with the agent Meriwether & Hunolt, the original plaintiffs in the suit, delivered the hogs on the morning of December 16th in defendant's pens at Edina early enough to have been loaded into the car and shipped on said morning and so as to arrive at the stockyards in East St. Louis before the close of the market of December 17th and the opening of the market of the following day, on either of which markets the hogs would have sold at $4.60 a hundred-weight. The gross weight of the hogs is stated, and the loss to the firm by reason of the lower price and for feeding while the hogs were in the stockyards; the total damages being laid at $98.23, for which judgment is prayed. The second count is similar to the first one, but avers a contract made with the station agent December 15, 1903, to furnish Meriwether & Hunolt a car for the shipment of 73 hogs on the morning of December 17th, so the car might be loaded on said morning, hauled over defendant's railroad and connecting lines, and arrive at the National Stockyards for the market of December 18th; that defendant "neglected and failed to furnish" the car as agreed, and did not furnish it until the evening of December 18th, and in consequence of the delay the hogs did not reach East St. Louis until after the close of the market of Saturday evening, December 19th, and could not be marketed until the following Monday, December 21st. Damages to the amount of $88.31 were demanded on this count. The third count alleges a contract similar to the foregoing to furnish a car on the morning of January 25, 1904, to be loaded with hogs and shipped immediately on the same day, so as to arrive at the National Stockyards on the morning of January 26th for the market of the latter day. This count does not allege failure to furnish a car as agreed, or loss from...