N. K. Fairbank Co. v. Illinois Cent. R. Co.

• Decision Date: 19 July 1912
• Citation: N. K. Fairbank Co. v. Illinois Cent. R. Co., 149 S.W. 1154, 167 Mo. App. 286 (Mo. App. 1912)
• Parties: N. K. FAIRBANK CO. v. ILLINOIS CENT. R. CO.
• Court: Missouri Court of Appeals

149 S.W. 1154

N. K. FAIRBANK CO. v. ILLINOIS CENT. R. CO.

St. Louis Court of Appeals. Missouri.

July 19, 1912.

Rehearing Denied October 15, 1912.

1. TROVER AND CONVERSION (§ 350)—ACTION FOR CONVERSION—PROOF REQUIRED.

In a suit for conversion, the burden is on plaintiff to show his ownership of the property involved.

2. TROVER AND CONVERSION (§ 16)—ACTION FOR CONVERSION—RIGHT OF PLAINTIFF.

Under a coal company's executory contract to sell plaintiff coal f. o. b. cars in St. Louis subject to plaintiff's right to reject shipments not meeting certain tests, plaintiff had no such title to coal delivered by the company at its mines in Illinois to a railroad company for delivery to plaintiff as entitles plaintiff to maintain an action against the railroad company for conversion, though the contract of sale had been modified so as to provide for delivery f. o. b. cars at the mines; title not having passed to plaintiff because the coal had not been tested as provided for by the contract

3. SALES (§ 88)—CONTRACTS—CONSTRUCTION.

Whether a given contract is one of sale which passes the property without further action is a matter of construction to be determined by the trial court as a matter of law.

4. SALES (§ 200)—WHEN TITLE PASSES.

If a contract of sale requires anything to be done in the way of inspection, testing, weighing, or the like, before acceptance, title to the property remains in the seller until that has been accomplished.

5. SALES (§ 199)—EXECUTORY CONTRACTS— PERFORMANCE.

An executory contract of sale becomes executed only upon delivery and acceptance of the goods in accordance with the contract and with intent to pass title.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by the N. K. Fairbank Company against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

J. F. Merryman, of St. Louis, for appellant. Watts, Williams & Dines and Wm. IL Gentry, all of St. Louis, and Jno. G. Drennan, of Chicago, Ill., for respondent.

NORTONI, J.

This a suit in conversion. At the conclusion of all of the evidence, the court peremptorily directed a verdict for defendant, and judgment was given accordingly. From this judgment plaintiff prosecutes the appeal.

The petition contains 21 counts, and in each count a recovery is sought for coal laden in cars at the mines of the Bessemer Washed Coal Company on defendant's railroad. Plaintiff, an incorporated company, owns and operates a large manufacturing establishment in St. Louis at which it consumes about two cars of coal per day. It appears that on June 17, 1909, plaintiff entered into a written contract with the Bessemer Washed Coal Company whereby it contracted to purchase, in accordance with the terms of such contract, all of the coal it required to operate its factory, and the Bessemer Washed Coal Company agreed to deliver such coal to plaintiff on the side track at its factory at Third and Convent streets in the city of St. Louis. This contract was subsequently modified, however, with respect to the point of delivery and as modified provided for delivery to be made f. o. b. cars at the mines of the Bessemer Washed Coal Company. The contract, by its terms, continued in force for one year from July 1, 1909.

Some three months after plaintiff's contract was made, defendant railroad company entered into a written contract with the Bessemer Washed Coal Company, whereby the coal company obligated itself to deliver to the railroad company not less than 22 nor exceeding 44 cars of coal each day at its mines on defendant's railroad in Illinois. For about six months, or until January 1, 1910, the coal company delivered coal for plaintiff, in accordance with the contract, as originally made, at Third and Convent streets in St. Louis, through transporting it over defendant's railroad to that place. But about the 1st of January, 1910, defendant railroad refused to carry the coal to plaintiff and insisted on taking the full output of the coal mines for its own use under its contract with the coal company. At this time plaintiff and the coal company modified plaintiff's contract stipulating for a delivery at the coal company's mines on defendant's railroad. This modification of the contract was orally made and goes to the extent mentioned only, and all other provisions of the contract remain as before.

During the months of January and February, the coal company loaded a large number of cars of coal at its mines on defendant's railroad, in accordance with the modified contract, for plaintiff, and sought to bill the same to it; but the defendant railroad company's agent at the mines, acting under instructions from defendant's general officers, billed all of...