Missouri Pac. R. Co. v. Askew Saddlery Co.

• Decision Date: 03 December 1923
• Docket Number: No. 14766.,14766.
• Citation: 215 Mo. App. 277,256 S.W. 566
• Parties: MISSOURI PAC. R. CO. v. ASKEW SADDLERY CO.
• Court: Missouri Court of Appeals

256 S.W. 566

215 Mo. App. 277

MISSOURI PAC. R. CO. v. ASKEW SADDLERY CO.

No. 14766.

Kansas City Court of Appeals. Missouri.

December 3, 1923.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by the Missouri Pacific Railroad Company against the Askew Saddlery Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Hackney & Welch, of Kansas City, for appellant.

Watson, Gage & Ess, of Kansas City, for respondent.

BLAND, J.

This is an action to recover back, on the ground of mutual mistake, the sum of $581.85, paid to the defendant by plaintiff in settlement of a claim for a supposed loss of goods in shipment. At the close of plaintiff's case the court sustained defendant's demurrer to the evidence, and plaintiff has appealed.

The petition is in two counts: The first count alleges that on August 20, 1920, defendant prepared for shipment to a Mrs. Knauber, at Wilsey, Kan., three packages of saddlery and one of collars; that defendant employed the Kansas City Transfer Company as its agent to transport said shipment from its place of business to plaintiff's freight station in Kansas City, Mo., and there to deliver said goods to plaintiff for shipment over plaintiff's railroad to Wilsey; that on said date said transfer company without delivering said goods to plaintiff fraudulently obtained a receipt from plaintiff's agent indicating that said goods had been delivered to plaintiff for shipment, when in truth and in fact none of said goods had been so delivered; that the transfer company thereafter delivered said receipt to defendant, and that defendant afterwards made claim for loss of the goods and presented the receipt so fraudulently obtained to plaintiff's agent as evidence of the receipt of the goods by plaintiff's agent; that other employées of plaintiff having to deal with shipments of freight of the character did, on the faith of the receipt so fraudulently obtained, make other records indicating that said shipment had been received, when in truth and in fact it was not received; that, on the presentation of the claim by the defendant to plaintiff, plaintiff was misled by said receipt and claim of the defendant into believing that said shipment had been received by plaintiff and lost in transit, and plaintiff was thereby induced to and did pay the reasonable value of said shipment, to wit, the sum of $581.85.

Plaintiff further alleges that, while defendant was chargeable with notice of the fraudulent character of said receipt, it having been obtained by defendant's agent, yet the officers of the defendant who made claim against the plaintiff for said goods were in fact in ignorance of the fraudulent character of the receipt; that said officers, in presenting said claim to the plaintiff and in receiving payment therefor, and also the agents of plaintiff who allowed and paid said claim, acted upon a mutual mistake of fact, believing that said goods had been received by plaintiff for shipment and lost in transit; that since it paid the claim plaintiff had discovered that no part of the goods had ever been delivered to plaintiff for shipment, and that the receipt therefor was fraudulently procured. The petition alleges that plaintiff had demanded of defendant the repayment of said sum of money, which was refused. The second count of the petition is for money had and received.

On the trial it was admitted that on June 14, 1921, plaintiff paid defendant the sum of $581.85 to cover the claim made by defendant to plaintiff; that the transfer company was employed by the defendant "specially, with special authority only to receive packages at the plant of the company at Kansas City and transfer them by truck to the depots of various railroad companies at Kansas City, and to return the bill of lading the next business day." It was further admitted that the transfer company was in the business of hauling for many industrial concerns of Kansas City, and that it was in the business of doing such hauling at the time of the trial. Defendant admitted that it prepared a bill of lading on an interstate commerce form, and a duplicate or receipt to be signed by the railroad company on the actual receipt of the goods; that the transfer company was paid by the defendant for the special services rendered; and that defendant delivered said bill of lading and receipt, which was substantially a duplicate of the bill of lading, and the goods in question, to the transfer company for transportation to plaintiff's depot for delivery to plaintiff, and procured a signed bill of lading for the shipment on the delivery. It was admitted that the transfer company delivered the original bill of lading to the defendant in the regular course of business on the day following the shipment.

Plaintiff showed by the assistant dock foreman of the transfer company at the time of this transaction that the shipment went to plaintiff's freight station, and that plaintiff's clerk checked it and found one box short and told the drayman to take it back, which was done. When it was returned to the transfer company's dock, the witness hunted up the missing box, and found it had gone on another and the wrong wagon or truck to another freight depot. The dock foreman told the witness to put the shipment upstairs and hold it for further order, which he did. Afterwards the dock foreman told the witness "to put it up in front, there is a clear receipt on it, and hold it until further orders from Mr. Hinshaw." Hinshaw was the owner of the transfer company. The witness further testified that Hinshaw said, "Put it in storage and hold it until we see what will come up about it." He testified that he then put it up in storage on the second floor of the warehouse, and that Hinshaw afterwards sold one of the saddles to some one at the stockyards in Kansas City, and shipped another to his son at Percival, Kan., and shipped the package of collars to Plevna, Kan. No part of the shipment was ever again taken to plaintiff's freight office for shipment to Mrs. Knauber. The witness further testified that about this time the transfer company was keeping other freight shipments, after getting receipts from railroad offices in Kansas City for them.

At the time in question plaintiff had in vogue the' following method of receiving and billing freight at its freight office: The driver of the truck or load, upon arriving with his load of freight to be shipped, took his bills to what was termed the block clerk and handed them inside to him. The block clerk separated these bills and took the shipping order portion, which was the portion that the railroad retained, and placed it on top, and pinned the bills together, and put upon them the block number, which designated the place at which the car was standing in which the goods were to be loaded. In this instance the block number was 108, and the car ART 10378. After getting the block number, the driver would then take his wagon or truck to the door that had been designated and hand the bills to the receiving clerk; the receiving clerk would check the articles separately, using an individual check mark for each item placed in front thereof on the bill of lading and shipping order. It was the duty of the checking clerk to carry the bills back, but if he was too busy he might send them back by the driver or a messenger boy to the block office for the receiving stamp to be applied. The block clerk then detached the shipping order, but had nothing to do with counting the goods or checking them, as he did not see them. The shipping order then went to the regular freight office.

There is an inference from the testimony that the bills involved in this case were issued by reason of the fraudulent conduct of the driver of the transfer truck or wagon in manipulating them. The checking clerk testified, when asked as to why he signed the bill of lading without receiving the goods, that "this billing, * * * it was put underneath another lot, is the receipt to another lot." Mrs. Knauber notified defendant that she had not received the shipment, and by letters of September 7, 16, and 23 the defendant wrote plaintiff, informing it that the shipment had not been received at destination, and asked plaintiff to trace the shipment at once; that the plaintiff was unable to locate the shipment, and advised defendant at that time that it make claim for, the loss. Defendant on September 23, 1920, mailed to plaintiff a copy of the bill of lading. On September 27, 1920, plaintiff's agent advised its agent at Wilsey, Kan., that waybill No. 64286 was issued, dated August 20, 1920, covering this shipment, consigned to Mrs. Knauber, and that the shipment was loaded in car "ART 10378." On the same day, September 27, 1920, plaintiff notified defendant that the shipment was received at Kansas City, August 20, 1920, and was shipped under Kansas waybill No. 64286 in car ART 10378. Defendant heard nothing further from plaintiff until January 12, 1921, when a check in the sum of $581.85 in favor of defendant was received from plaintiff. This check was cashed in due course `and nothing more was heard by defendant from plaintiff until the 14th day of May, 1921, when defendant received a letter from plaintiff's attorney advising defendant that the goods had not been actually received by the plaintiff and demanding a refund of the money paid in the settlement.

The evidence shows that after the receipt of the claim an investigation was made by plaintiff's agents, and they concluded that the goods had been received and lost in transit. Of course, an examination of the shipping order or the copy of the bill of lading sent plaintiff by defendant would have disclosed that the goods had not been received, because the articles had not been checked upon them. Howevletr, plaintiff's evidence attempted to excuse this oversight on the ground that there were a great number of shipping orders and they were bound in large...