N. K. Fairbank Co. v. Illinois Central Railroad Co.

• Decision Date: 19 July 1912
• Citation: N. K. Fairbank Co. v. Illinois Central Railroad Co., 149 S.W. 1154, 167 Mo.App. 286 (Mo. App. 1912)
• Parties: N. K. FAIRBANK COMPANY, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Respondent
• Court: Missouri Court of Appeals

149 S.W. 1154

167 Mo.App. 286

N. K. FAIRBANK COMPANY, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

July 19, 1912

Motion for Rehearing Overruled October 15, 1912.

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

AFFIRMED.

Judgment affirmed.

J. F Merryman for appellant.

The court erred in giving the peremptory instruction in which the jury was directed to find a verdict in favor of the defendant on each one of the twenty-one counts of the petition, which includes the 2nd, 3rd, 5th, 6th, 7th, 8th, 9th, 10th, 12th 14th, 15th, 16th, 18th, 19th and 20th counts of plaintiff's petition, for in these fifteen counts there was a conflict in the evidence as to the question of delivery, and where there is such a conflict then it becomes a question of fact for the jury. Glass et al. v. Gelvin, 80 Mo. 297; Howdlett v. Zollman, 14 Me. 400; Hatch v. Bailey, 12 Cush. 29; Williams v. Gray, 39 Mo. 201; Blackmer v. Railroad, 101 Mo.App. 557; Thomas v. Ramsey, 47 Mo.App. 98; Howdlett v. Zollman, 14 Me. 400; Glass v. Gelvin, 80 Mo. 297.

John G. Drennan for respondent.

Blewett Lee, W. S. Horton, and Watts, Gentry & Lee of counsel.

(1) "An executory contract of sale becomes executed upon delivery and acceptance of the goods in accordance with the contract, and with intent to pass title." 24 Am. & Eng. Ency. Law (2 Ed.), 1047. (2) Where a given contract is one of sale which passes the property is one of construction to be determined by the court as a matter of law. Wells v. McNerney, 51 A. 1064; Aultman v. Silha, 85 Wis. 359; Irvin v. Edwards, 92 Tex. 258; 24 Am. & Eng. Ency. Law (2 Ed.), 1049. (3) If anything remains to be done in the way of inspection, testing, weighing or the like before acceptance, the title remains in the vendor until all this has been done. McFadden v. Henderson, 128 Ala. 221; Clarke v. Wolf, 115 Ga. 320; McClung v. Kelley, 21 Iowa 508; Smith v. Wisconsin Investment Co., 114 Wis. 151; 24 Am. & Eng. Ency. Law (2 Ed.), 1049.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

--This is 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 twenty-one 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 twenty-two nor exceeding forty-four 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 first of January, 1910, defendant railroad company 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 these cars of coal to the railroad company as if it had been tendered by the coal company under its contract with the railroad company. Though the coal company protested at the time and insisted on billing the coal to plaintiff, it afterwards acquiesced in the conduct of the railroad company and accepted payment from it for all of the coal involved here. Plaintiff prosecutes the suit against the railroad company for conversion of the coal as if the coal were its property at the time the railroad appropriated it upon its contract.

No one can doubt that, to sustain this suit in conversion, it devolved upon plaintiff to show that it owned the coal, that is to say, that the title thereto had passed from the coal company to it at the time the railroad company appropriated the same. Obviously plaintiff failed as to this, for there is no proof whatever tending to show that it accepted the coal in the cars at defendant's mines and its contract of purchase is purely executory in character. In other words, plaintiff's contract with the coal company does not evince a present sale of the coal but instead was to be executed in the future in accordance with the terms and requirements therein set forth. At the time the contract was made, the coal was in the earth and unmined. The contract provides that: "The coal company agrees to furnish and deliver to plaintiff f. o. b. cars at Third and Convent streets," St. Louis, and that plaintiff "agrees to purchase from the company all of the coal required for consumption at said factory during...