Nanson v. Jacob

• Decision Date: 19 December 1887
• Citation: 93 Mo. 331,6 S.W. 246
• Parties: NANSON et al. v. JACOB et al.
• Court: Missouri Supreme Court

6 S.W. 246

93 Mo. 331

NANSON et al. v. JACOB et al.

Supreme Court of Missouri.

December 19, 1887.

1. CARRIER — COMMON CARRIER OF GOODS — DELIVERY TO CONSIGNEE — CONVERSION.

Plaintiffs' assignors shipped by a common carrier certain goods addressed to another person, but took a bill of lading which showed that the goods were consigned to the order of the consignors. On the arrival of the goods, another common carrier,

in the usual course of business, and at the addressee's request, obtained and delivered them to him without notice that he was not the real owner. Held, that there had been no conversion by the second carrier.

2. SAME — WHO ARE CONNECTING CARRIERS.

Goods were shipped by common carrier; the destination being East St. Louis, Illinois. On their arrival, the carrier notified the addressee of its readiness for, and insisted on, immediate delivery, and he had the goods transported to St. Louis, Missouri, by another common carrier. Held, that the latter carrier was not a connecting carrier.

3. SAME — ACTION FOR CONVERSION — WAIVER OF RIGHT TO MAINTAIN.

Plaintiffs, having a claim arising out of a consignment of goods against one who had assigned his property for the benefit of his creditors, took judgment by procuring the allowance by the assignee of the claim as an account against the estate, accepted several dividends from the assignee in part payment, and, before the administration of the estate was completed, sued the addressee of the consignment and the carrier for an alleged conversion of the goods. Held, that plaintiffs had waived their right, if any, to sue for a conversion. BLACK and BRACE, JJ., dissenting from the conclusion that the allowance by the assignee was a judgment.

4. SAME — DEMAND — PLEADING.

Rev. St. Mo. 1879, § 1018, provides that, in actions for either property or money, a failure to demand the subject-matter of the suit before the beginning thereof shall not be available unless pleaded in defense, and accompanied by a tender of the amount due; and that if, in such case, plaintiff does not recover more than the sum tendered, he shall pay all costs. Held, that this provision does not apply to a demand necessary to sustain an action of trover, nor to common carriers.

5. PARTIES — REAL PARTY IN INTEREST — PLEADING AND PROOF.

Rev. St. Mo. 1879, § 1018, provides that every action shall be prosecuted in the name of the real party in interest. The answer in a suit brought by plaintiffs, as assignees of the cause of action, denied the assignment, and that plaintiffs were the real parties in interest. On trial, plaintiffs produced in evidence a written assignment of the cause of action to them, and defendants offered testimony to impeach it. Held, that an issue was raised whether plaintiffs were such parties, and that the testimony was admissible.

Appeal from St. Louis court of appeals.

Action of trover by Joseph S. Nanson et al., appellants, against Robert Jacob and the St. Louis Transfer Company, respondents, and the Wabash, St. Louis & Pacific Railway Company, for the conversion of some bales of hops. The remaining facts are stated in the opinion.

Albert Arnstein, for appellants. S. M. Breckinridge and Millard F. Watts, for respondent, St. Louis Transfer Co.

SHERWOOD, J.

Action in trover, brought against Robert Jacob, the St. Louis Transfer Company, and the Wabash, St. Louis & Pacific Railway Company, for the alleged conversion of a number of bales of hops, the property of plaintiffs' assignors. The petition states, in substance, that S. and F. Uhlmann were on the sixteenth day of December, 1879, the owners and in possession of a certain number of bales of hops; that on that day they casually lost the same out of their possession; that on the same day that said property came into the possession, by finding, of defendants, who refused to deliver them to said S. and F. Uhlmann, but converted the same to their own use; that, after the said cause of action accrued in favor of the said Uhlmanns, they did, on the fifteenth day of January, 1880, assign the same to plaintiffs. The defendants answered separately, the defendant Jacob denying all the allegations of the petition, and alleging as his defense, in substance, that he had bought the hops of the Uhlmanns; that after the purchase he made an assignment for the benefit of his creditors; that plaintiffs, claiming to be the assignees of the Uhlmanns in the contract of sale of the hops, accepted the provisions of the assignment, and proved up their claim before the assignee, and, in payment of the claims, the assignee had transferred to plaintiff certain claims and choses in action; that the assignee had paid part of the claim in money; and the administration of the effects of his estate was not yet closed. The defendant the St. Louis Transfer Company denied all the allegations of the petition, and alleged that it was a common carrier, engaged in the transportation by wagons, of freight from East St. Louis to St. Louis; that, on the day of the alleged conversion, defendant Jacob represented to it that he had three car-loads of hops in East St. Louis, which he desired this defendant to bring for him to the city of St. Louis, and at the same time showing this defendant written and printed notices from the defendant railway company to him, notifying him of the arrival of the hops in East St. Louis consigned to him, and requiring him to call and remove the same; that thereupon this defendant agreed with Jacob, for a certain price, to bring the hops for him to St. Louis; that Jacob indorsed his order on said notices from the railway company, requesting the railway company to deliver the hops to this defendant; that said notices disclosed no claim of any other person to said hops, and, on the contrary thereof, warned defendant Jacob that unless said hops were removed within the time by the notices indicated, i. e., 24 hours, he would be required to pay a penalty for delay in the shape of an increased charge to the carrier, the railroad company, for warehouse fees; that, upon presentation of this order of defendant Jacob to the railway company, the hops were delivered to this defendant, and by it delivered to Jacob in St. Louis; that all of its acts were done in good faith, and in accordance with its custom, and the custom and duty of common carriers; that it exercised no act of ownership over said hops, and did not in any manner convert the hops to its own use, or the use of any one; that no demand had ever been made upon it by plaintiffs for the hops, or the value thereof; denied the assignment to plaintiff, and alleged the sale of the hops to Jacob, as set forth in the answer of Jacob, etc. The plaintiffs dismissed their cause of action as to the Wabash, etc., Railway Company.

The facts in this case are briefly as follows: "On the twenty-fourth day of November, 1879, said S. and F. Uhlmann, assignors of plaintiffs, dealers in hops in New York city, consigned to Robert Jacob, of St. Louis, a lot of hops, part of which are involved in this controversy. The hops were shipped by the Red Line Transit Company, of which the St. Louis, Wabash & Pacific Railroad Company was the terminal carrier at St. Louis and East St. Louis, and a bill of lading given therefor, by which it appeared that the hops were consigned to the order of S. and F. Uhlmann. A draft was drawn for the amount of the invoice of the hops, attached to this bill of lading, and sent to the Bank of Commerce of St. Louis, with instructions to surrender the bill of lading to Jacob on payment of the draft; on each bale of hops there was a tag bearing the number and address, R. Jacob & Co. The hops reached East St. Louis over the Red Line Transit Company, and were stored at the depot of the Wabash Railroad Co. After remaining there a day or so, the Wabash Railroad Co., the terminal carrier at St. Louis and East St. Louis of the line bringing the hops, addressed to R. Jacob & Co. a notice stating that the hops consigned to them had been received at the depot in East St. Louis, stating the amount of charges on the same, and that if the goods were not taken away, and charges paid, in twenty-four hours, the hops would be stored at their risk and expense. The notice also stated that the goods would not be delivered without a written order from the consignee, (Jacob;) and at the bottom of this notice was a blank order, to be filled out by Jacob, directing the Wabash Railroad Co. to deliver the hops to the person therein named. Jacob received this notice, carried the same to Fitzgibbon, the agent of defendant the St. Louis Transfer Company, handed him a check for the amount of the railroad charges, and filled out the blank order at the bottom of the notice, directing the Railroad Co. to deliver the hops to defendant. The defendant presented Jacob's check for the charges, and his order to the Wabash Railroad Co., and received from it the hops which defendant then delivered according to Jacob's direction. This all occurred about the sixteenth of December, 1879, and in the mean time the bill of lading had been received by the Bank of Commerce, attached to the draft; and the draft was unpaid, and the bill of lading was still in the possession of the bank, when Jacob received the hops. About two weeks after receiving the hops, Jacob made an assignment for the benefit of his creditors to Hugo Muench, and on the fifteenth of January, 1880, S. & F. Uhlmann, the original owners of the hops, executed and delivered to plaintiffs an instrument in writing, purporting to assign for value to plaintiffs all their right and interest in and to the hops, and also any claim or dividend they might have by reason by the conversion of the hops against any person. Plaintiffs proved up a claim against the assigned estate of Jacob before Muench, Jacob's assignee, on account of these hops; but whether for conversion, or as for a sale, there was some dispute, — the assignee stating that he refused to allow...