Peycke Bros. Commission Co. v. Sandstone Co-Op. Co.
| Decision Date | 12 February 1917 |
| Docket Number | No. 12265.,12265. |
| Citation | 191 S.W. 1088,195 Mo. App. 417 |
| Parties | PEYCKE BROS. COMMISSION CO. v. SANDSTONE CO-OP. CO. (GREAT NORTHERN RY. CO., Garnishee). |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Chas. W. German, Special Judge.
Action by the Peycke Brothers Commission Company against the Sandstone Co-operative Company, wherein notice of garnishment was served upon the Great Northern Railway Company. From a judgment against the garnishee, it appeals. Judgment reversed.
Warner, Dean, McLeod & Langworthy and James P. Kem, all of Kansas City, for appellant. Edwin S. McCrary, of Kansas City, for respondent.
The appeal herein involves the validity of a garnishment obtained in a justice court. In the case of Peycke Bros Commission Co. v. Sandstone Co-operative Company, the justice, on January 24, 1914, rendered judgment in favor of plaintiff for $326.30, and said judgment became final. Notice of garnishment was served upon the garnishee May 9, 1914. The garnishee denied that it had in its possession or under its control any property of the Sandstone Cooperative Company, or was indebted to it in any way. This issue was tried before the justice on June 16, 1914, resulting in a judgment against the garnishee for $267.66. Appeal was taken to the circuit court, where the matter was tried anew, and judgment was again rendered against the garnishee for said amount, and it has brought the case here.
The contention of garnishee is that the evidence discloses no debt, subject to garnishment, owed by the garnishee to the Sandstone Co-operative Company. If this is true, the other points made concerning the admissibility of certain parts of plaintiff's evidence need not be considered. Passing these, the question whether plaintiff's evidence is admissible in its entirety, the facts upon which the garnishment rests may be stated thus: The Sandstone Co-operative Company, located at Brookport, Minn., shipped a carload of cabbage from that point to Kansas City. The Great Northern Railway Company was the initial carrier, and the shipment was upon a bill of lading to shipper's order, with directions to the carrier to notify Peycke Bros. Commission Company at Kansas City. The bill of lading, with draft for $267.66 attached, was sent to a Kansas City bank. The Chicago Burlington & Quincy Railway Company was the terminal carrier, and it had an arrangement with Peycke Bros. Commission Company, whereby, under a bond given to indemnify the carrier, the latter would deliver shipments to the commission company as they arrived without demanding the bill of lading. When the carload of cabbage arrived, the Burlington delivered it to the commission company who unloaded and disposed of it. In the meantime, however, the commission company, claiming that other cars shipped to them by the Sandstone Company shortly before or about the time of the shipment of the car now in question were not as represented, brought suit, and obtained the judgment for $326.30, hereinbefore mentioned. The commission company, after obtaining the car now in question from the Burlington Railway, did not pay the draft and obtain the bill of lading from the bank, and made no effort to do so for some time after the delivery of the car. In the meantime, the Sandstone Company recalled the draft and bill of lading, and the same never reached the commission company, and, the shipment being to shipper's order, the title to the shipment never passed. The delivery of the car by the Burlington, without requiring the bill of lading to be surrendered, was unauthorized, and, upon demand by the Burlington for payment to cover invoice price of the car, Peycke Bros. Commission Company paid to the Burlington agent $267.66 on April 27, 1914. As stated, notice of garnishment was served upon the Great Northern Railway Company May 9, 1914. Plaintiff claims, however, that there is evidence tending to show that the Burlington agent collected said money for the Great Northern, and was holding it for that railway company at the time of service of notice of garnishment and at the time of the trial in the justice court, to wit, June 16, 1914. We will notice this claim as to the evidence later.
The burden is upon the plaintiff to prove the answer of the garnishee is not true. Davis, Garnishee, v. Knapp, 8 Mo. 657. The question then is, Does the evidence disclose any debt due from the Great Northern Railway Company to the Sandstone Co-operative Company which is subject to garnishment under the rules of law applicable thereto?
The delivery of the car by the terminal carrier, the Burlington, was unauthorized, and this, under the Interstate Commerce Act, rendered the initial carrier, the Great Northern, liable either in tort for the conversion of the car of cabbage or on contract for breach of the contract of carriage. In neither case would the damages be liquidated, and an unliquidated claim cannot be reached by garnishment. Eddy v. Heath's Garnishees, 31 Mo. 141; Ransom v. Hays, Garnishee, 39 Mo. 445; Waples-Platter Grocery...
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