Missouri Coal & Oil Co. v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 March 1864
• Citation: 35 Mo. 84
• Parties: THE MISSOURI COAL AND OIL COMPANY, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

35 Mo. 84

THE MISSOURI COAL AND OIL COMPANY, Respondent,

v.THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Law Commissioner's Court.

L. Eaton, for respondent.

S. N. Holliday, for appellant.

BATES, Judge, delivered the opinion of the court.

The petition states that both parties are corporations; that the plaintiff delivered to defendant, who was a common carrier, a barrel of coal oil, which defendant, for a valuable consideration, agreed to transport from St. Louis, in the State of Missouri, to Lawrence, in Kansas Territory, and to deliver the same to Prentiss & Griswold, in said Lawrence; and that defendant failed to deliver the same according to said agreement. The answer denied that the oil was delivered to the defendant, and also denied any indebtedness to the plaintiff; thus the only issue was as to the delivery of the oil to the defendant. It appeared in evidence that the oil was shipped on the steamboat ““Aunt Letty,” at St. Louis; but the authority of the steamboat to receive the same for the defendant does not appear, otherwise than that some testimony was given that one John Bowen, “freight agent” of the defendant, promised the plaintiff to pay for the lost oil when he should get some money from the steamboat “Aunt Letty;” and Bowen testified that he told the plaintiff that the “Aunt Letty” was to pay it, and not the defendant; and that he promised to collect the money from the “Aunt Letty” as a favor to the plaintiff, and in no other manner. There was verdict and judgment for the plaintiff.

The first instruction given for the plaintiff was as follows: “All the allegations in the petition which are not denied specifically in the answer, are to be taken as true.” This instruction is manifestly wrong, because it is a general declaration of the law, without reference to the particular issue made in this case.

The respondent contends that no injury was done by it to the appellant, because of two other instructions given to the jury, which, it is insisted, made it clear to the jury what was the real issue; they are as follows: “4. It is admitted by the pleadings that defendant failed to deliver the barrel of coal oil, if it ever received the same from plaintiff, and defendant denies ever having received it;” and “2. If the jury believe the barrel of coal oil was delivered by the plaintiff to the defendant, or defendant's agent, or to the ‘Aunt Letty,’ in the employ of the...