Penney & Penney Feed Co. v. Kramer

• Decision Date: 06 December 1915
• Docket Number: No. 11726.,11726.
• Citation: 182 S.W. 755
• Parties: PENNEY & PENNEY FEED CO. v. KRAMER.
• Court: Missouri Court of Appeals

182 S.W. 755

PENNEY & PENNEY FEED CO. v. KRAMER.

No. 11726.

Kansas City Court of Appeals. Missouri.

December 6, 1915.

Rehearing Denied February 7, 1916.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by the Penney & Penney Feed Company against J. E. Kramer. From a judgment for plaintiff, defendant appeals. Affirmed.

John S. Boyer, of St. Joseph, and Broaddus & Crow, of Kansas City, for appellant. Spencer & Landis, of St. Joseph, for respondent.

JOHNSON, J.

In the first count of the petition plaintiff, a corporation, sued to recover $483, the value of a carload of corn it delivered to a gristmill operated by defendant in St. Joseph. Defendant undertook to grind the corn into feed and deliver the feed to plaintiff, but was prevented by a fire which destroyed the mill and its contents on October 11, 1912. The ground on which the alleged liability is predicated is that defendant had a policy of fire insurance on the contents of the mill, including grain and feed belonging to customers, and in his proofs of loss and subsequent settlement with the insurance company, included and received indemnity for the loss of plaintiff's corn. In the second count plaintiff sued as the assignee of a similar demand for $33, the value of certain hay stored in the mill by another dealer in feed. The answer is a general denial. A trial to a jury resulted in a verdict and judgment for plaintiff on both counts, and defendant appealed.

At the time the policy was issued defendant owned the mill, but the business was carried on by a corporation of which defendant was a stockholder, and the policy was issued to the corporation. Afterward defendant took over the business and had the insurance transferred to him. He made some sort of an arrangement for his brother and the latter's daughter to run the business, either for him, or on their own account. There is a dispute over the nature of the arrangement, but there is substantial evidence that defendant rented the mill to his brother and niece, sold them the personal property therein which belonged to him, taking their note for $976 in payment of the purchase price, with the understanding, as stated by the niece, that "we were to run the mill as best we could, and at any time that he saw fit to take the mill back, we were to deliver to him either the money or the goods." In short defendant retained the title to the property — the sale being conditional — and, of course, carried the policy of insurance in his own name. The corn and hay in controversy were received at the mill in the usual course of business, while defendant's brother and niece were in...