Moore v. Henry

• Decision Date: 25 May 1885
• Citation: 18 Mo.App. 35
• Parties: J. W. MOORE & SON, DEFENDANTS IN ERROR, v. W. J. HENRY ET AL., PLAINTIFFS IN ERROR.
• Court: Kansas Court of Appeals

18 Mo.App. 35

J. W. MOORE & SON, DEFENDANTS IN ERROR, v. W. J. HENRY ET AL., PLAINTIFFS IN ERROR.

Court of Appeals of Missouri, Kansas City.

May 25, 1885

ERROR to Harrison Circuit Court, HON. JOHN C. HOWELL, J.

Reversed and remanded.

Statement of case by the court.

This action of replevin was tried by the court without a jury and without instructions, upon the following agreed statement of facts: That some time in November, 1880, plaintiffs ordered the bill of goods, mentioned in the petition, to be sent from his wholesale merchant, Quincy, Illinois, by rail to Princeton, Mo.; that wholesale merchant placed said goods in the boxes and placed on said boxes the directions and figures, the following, to-wit: " J. W. Moore & Son Eagleville, Mo., via Keokuk to Princeton, Mo." That said merchant sent the goods to the depot of the St. Louis &amp Keokuk R. R. Co., that the station agent of said company at Quincy executed and delivered a receipt for said goods in word and figure to-wit: St. Louis & K. Railroad, Quincy Illinois, Nov. 12th, 1880. Received from J. R. Dayton &amp Co., as consignor, in apparent good order, the articles marked and numbered as in the margin, to be transported over said railroad to station, and there to be delivered in the like good order to ________________, or order, on receipting for the same and payment of the freight and charges thereon subject to the rules and regulations established by the company.

MARKS AND NUMBERS. ARTICLES.

John W. Moore and Son, 6 Cases Books and Stationery.

1 ....................Slates.

Eaglevile, Mo.,

1 Box Blacking.

Via Keokuk. 3 Box Ink, 4 Bales of Paper.

(Signed) MEADE,

Agent for the Company.

Also the following, a copy of that part of the waybill bearing upon this case:

Keokuk and St. Louis Line,

No. 81. Keokuk, Feb. 12, '81.

Delivered by the St. Louis, Keokuk & Northwestern Ry. Co., to the C., B. & Q. R. R., the following articles in good order and conditions, unless otherwise noted or addressed on the margin:

WAY BILL. CAR, WHERE FROM. SHIPPERS.

1.

Date. No. Where No. Quincy. J. W. Moore & Son.

2.

13. 122. K. & L. 519. J.R.D.& Co. Eagleville, Mo.

ARTICLES. WEIGHT.FR'T. CHARGES. TOTAL

6 C. Books & Stationery.

3 Boxes Ink. $3.41

1 Case Slates.

1 Box Blacking.

4 Bales Paper. 66 $4.07

Also a copy of the receipt, not signed by defendant, to said St. Louis & Keokuk R. R. Company, as follows:

............... Station, Nov. 13th, 1880.

J. W. MOORE & SON, Eagleville, Mo., to St. Louis, Keokuk & North Western Ry. Co., Dr., for freight and charges from Quincy.

DESCRIP'N OF ARTICLES. WEIGHT. LOCAL CH'GES.

Date of way-bill, 6 Cases of Books & Sta'nry,

Nov. 13, '80. 3 Boxes Ink, 1,550 $3.41

No. of way-bill, 1 Case Slates,

122. 1 Box Blacking,

No. of Car, 4 Bundles of Paper, 350 .66

519, K. L. Back Charges.

Total $4.07

J. R. D. & Co., Consignors.

Received payment for the Company,

........................, Agent.

Also the following is a copy of the local freight bill of the defendant:

Chicago, Burlington & Quincy R. R.

No. 743.From Keokuk to Blythedale, Missouri.

Consignor, K. & St. Louis.

Consignee, J. W. Moore & Son.

DESCRIPTION OF GOODS:

6 cases books and stationery

3 boxes ink, 1 slates, weight 1,550

4 bundles paper weight 350

Advanced charges

Local charges

Total

From Keokuk, Iowa, to Blythedale, Missouri.

It is also agreed that the defendants have a continuous railroad connection from Quincy, Illinois, to Blythedale, Missouri, with depots at both places. That there is a continuous railroad connection from Quincy, Illinois, to Princeton, Mo., via Keokuk, Iowa, other and different from that of the defendants; that plaintiffs nor either of them, at any time, authorized or consented that defendant should carry said goods to Blythedale, Mo.; that plaintiffs had no knowledge that defendants had possession of said goods as common carriers, till notified by it that they were at their depot at Blythedale, Mo., and that they did not in terms forbid defendants to take such possession. That defendants have not and never did have any railroad to Princeton, Mo. That plaintiffs did not forbid defendants to take charge of said goods in any way other than that involved in their direction to have the goods sent to a place at which defendants have railroad connections. The plaintiffs went to Princeton, Mo., for the goods, with teams, about the time they were due there according to their direction, and before being notified that the goods were at Blythedale, Mo. That Blythedale is the nearest railroad station to Eagleville, Mo., being within five miles of Eagleville, and Princeton, Mo., is twenty miles from Eagleville. That said goods were brought by defendants to Blythedale, from which place plaintiffs were notified to take them away, upon the payment of freight charges, and where they were levied upon by the sheriff in this case."

The court rendered judgment for plaintiffs, and defendants bring the case to this court.

D. J. HEASTON, for plaintiffs in error.

I. The bill of lading was the contract between the consignors, Dayton & Co., (Moore's Agent), and the Keokuk R. R. Co., and the C., B. & Q. R. R. Co. were mere forwarders for the Keokuk company, and acted in entire good faith and were guilty of no fault; and having paid the back charges, and being entitled to their own freight charges, were entitled to hold the goods until such freight charges were paid.

II. " If any injury occurs, or any loss ensues, by reason of the first carrier to whom the owner's instructions were communicated, not fully or understandingly carrying them through the routes he should have done, as if the goods are in consequence sent to the wrong place, this will not exonerate the owner from responsibility for the charges of transportation by the subsequent carriers, or affect the validity of the lien for such charges as they have themselves earned or advanced to the other companies from the point of original departure." 2 Redf. on Railways, p. 175, sect. 19 and 188 (4th Ed., 1869); also sect. 180, p. 121; McDonald v. West'n Ry., 24 N.Y. 497; Alden v. Carver, 13 Iowa 253; Kohn v. Packard, 23 Am. Dec. 453; Holliday v. R. R. Co., 74 Mo. 159; Lawson on Cont. Carriers, p. 342, sect. 243, et seq.; Cramer v. Express Co., 56 Mo. 524; Coates v. U. S. Express Co., 45 Mo. 238; Pruitt v. Hannibal & c. R. R., 62 Mo. 527; Tucker v. Pacific R. R. Co., 50 Mo. 385 Coquard v. Union Depot Co., 10 Mo.App. 261.

III. The bill of lading is the sole evidence of the contract in this case. O'Brien v. Kinney, 74 Mo. 125; St. Louis & c. R. R. v. Cleary, 77 Mo. 634.

ALVORD & WOODRUFF, for defendants in error.

I. Where goods are shipped to one place in care of " D" and they are delivered at same place in care of " F," without the assent of the owner, in an action of replevin for the goods, held that the owner was entitled to the possession of the goods without payment of freight. Fitch v. Newberry, 1 Dougl. (Mich.) 1; 2 Redf. on Railways (4th...