Old Kentucky Distillery v. Stromberg-Mullins Co.

• Decision Date: 21 December 1917
• Docket Number: 3832.
• Parties: OLD KENTUCKY DISTILLERY v. STROMBERG-MULLINS CO.
• Court: Montana Supreme Court

169 P. 734

54 Mont. 285

OLD KENTUCKY DISTILLERY v. STROMBERG-MULLINS CO.

No. 3832.

Supreme Court of Montana

December 21, 1917

Appeal from District Court, Silver Bow County; J. B. McClernan Judge.

Action by the Old Kentucky Distillery, a corporation, against the Stromberg-Mullins Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Earle N. Genzberger, of Butte, for appellant.

Binnard & Rodger and J. A. Poore, all of Butte, for respondent.

BRANTLY C.J.

Action in claim and delivery brought by plaintiff to recover possession of five barrels of whisky of the alleged value of $465.11. At the close of the evidence the district court directed a verdict for the plaintiff. From the judgment entered thereon and from an order denying it a new trial, the defendant has appealed. The controversy arose out of the following facts The plaintiff's place of business is at Louisville, Ky. On January 11, 1913, David Grant, who was then conducting business as a saloonkeeper at Dillon, Mont., ordered from the plaintiff, to be shipped to him at Dillon, five barrels of Kentucky Dew whisky on or before March 1, 1913. The order was oral, being made through M. J. Green, a traveling salesman of the plaintiff, who was at Dillon at the time. Green made a memorandum upon an order blank such as was generally used by him for taking orders for liquors, specifying the quality age, etc., of the whisky desired by Grant, the price per gallon, and terms of payment. The price made to Grant was $2.59 per gallon at Dillon, including the federal revenue tax and freight; Green agreeing that, if Grant should, upon receipt of the whisky at Dillon, be obliged to pay a greater amount of freight than that which was added to the selling price per gallon at Louisville ($2.36, including the revenue tax), he would make up the difference. Grant agreed to pay the federal revenue tax of $1.10 per gallon in cash at the date of shipment. The plaintiff was to draw on him for that amount. The balance of the purchase price was to be paid within 4 months, or, at Grant's option, within 30 days at a discount of 4 per cent. Green left with Grant a memorandum containing a detailed statement of the items going to make up the agreed price. In a letter of that date to plaintiff inclosing the order blank, Green requested plaintiff, if possible, to arrange to have the shipment included in "a pool car to Butte." Upon receipt of Green's letter the plaintiff approved the order, and a note was made upon the order blank of Green's request. Grant did not know that such an arrangement was intended or was made until he was notified of the receipt of the whisky by the defendant in Butte. The meaning of the expression "pool car" was explained by plaintiff's witnesses as follows: In order to reduce the charge for freight, by securing carload rates which are less than the rates upon smaller shipments, two or more shippers from the same point to the same or different purchasers residing at a distant point by mutual consent pool or consolidate their separate shipments in order to make a full carload, each identifying the packages making up his shipment by appropriate tags or marks. If the shipments are intended for different purchasers residing at the same or nearby points, consignment of the car is made in the name of one of the shippers to one of the purchasers who, in accordance with a previous agreement with the several shippers, distributes the different shipments to the respective purchasers entitled to them, collecting from each his proportionate share of the freight. Upon inquiry plaintiff's traffic manager ascertained that the Kentucky Distilleries & Warehouse Company was consolidating a car for the defendant at Butte. He thereupon requested this company to obtain from defendant its consent to allow the Grant shipment to be included in this car. On January 20th this company wrote to defendant asking its permission to include a shipment of ten barrels from Grabfelder & Co., also of Louisville, to the Caplice Commercial Company at Butte, and of the five barrels from the plaintiff to Grant at Dillon. On January 27th it replied as follows:

"On the 24th we telegraphed you to route the car of whisky ordered via Burlington, Northern Pacific at St. Paul. It will be satisfactory to us if you include the two shipments specified in yours of the 20th. Later we are in receipt of yours of the 24th and trust you will get the car off promptly according to instructions."

The car reached Butte prior to February 11th consigned to the defendant; the plaintiff having in the meantime notified defendant that it contained the Grant shipment. On February 18th defendant wrote to plaintiff as follows:

"We are in receipt of yours of the 15th in reference to five (5) barrels of whisky, for Dan Grant, sent in a car consigned to us by Kentucky Distilleries & Warehouse Co. You are mistaken when you state that this was a pool car, as it was made up by us and was consigned and delivered direct to us. The five (5) barrels were placed in the car by the K. D. & W. Co. without solicitation on our part, and when they were received we decided to hold them awaiting a satisfactory answer from Mr. Grant in regard to a just account which we have carried against him for years. We inclose you herewith a copy of the letter which we wrote him on receipt of the shipment, and we think the matter can be safely left for him and us to settle between ourselves. As you can see from the inclosed copy, we are not unreasonable in either our position or our request."

It also wrote Grant that his shipment had been received, and that it was being held pending his payment of a debt alleged to be due from him to defendant. On the same date Grant wrote to plaintiff:

"I have received notice from the Stromberg-Mullins Co. that they have received five barrels of whisky from you marked to me, but that they are holding the same, claiming that I owe them and that they will hold the same until their account is settled. They have no legal claim against me and I look to you for the whisky I ordered, and if delivery cannot be had kindly return to me the money. The whisky was to be delivered at Dillon and I am not doing business with the Stromberg-Mullins Co. of Butte."

On March 11th, he telegraphed:

"When are you going to deliver my 5 bbl. whisky? Answer."

To this, plaintiff replied:

"We have filed suit to secure immediate possession of our whisky."

And on March 30th Grant wrote to plaintiff:

"I am on my last bbl. of K. D. Do you think I will get my 5 bbl. within a short time? If not I will have to order elsewhere. Please let me hear from you by return mail."

Upon the shipment of the whisky the plaintiff drew upon Grant for the amount of the federal tax, $197.69. This Grant paid....