Ryley-Wilson Grocer Co. v. St. Louis & S. F. R. Co.

• Decision Date: 21 February 1916
• Docket Number: No. 11891.,11891.
• Citation: 184 S.W. 915
• Court: Missouri Court of Appeals
• Parties: RYLEY-WILSON GROCER CO. v. ST. LOUIS & S. F. R. CO.

184 S.W. 915

RYLEY-WILSON GROCER CO. v. ST. LOUIS & S. F. R. CO.

No. 11891.

Kansas City Court of Appeals. Missouri.

February 21, 1916.

Rehearing Denied April 3, 1916.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by the Ryley-Wilson Grocer Company against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cowherd, Ingraham & Durham, of Kansas City, and W. F. Evans, of St. Louis, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff is a wholesale grocer company at Kansas City, Mo., with a branch at Ft. Scott, Kan. On August 19, 1912, plaintiff purchased through the "Russell Brokerage Company" a carload of granulated beet sugar from a sugar refinery in Colorado at $5.18 per 100 pounds, including freight to Ft. Scott. The sugar was shipped under bill of lading by the refining company to the Russell Brokerage Company at Ft. Scott. The car duly arrived at Ft. Scott on August 26th and defendant's agent notified the Russell Brokerage Company that the car had arrived and had been delivered to plaintiff's warehouse. After plaintiff purchased the sugar and before its arrival it sold a part of it to retail grocers to be delivered on arrival, and after being notified of its arrival and delivery it sold the remainder all at a profit of 34 cents per 100 pounds.

But defendant had not delivered the sugar to plaintiff. It was ascertained that it had made the delivery to one of plaintiff's competitors, and plaintiff was deprived of the benefit and profit of the sales made as stated. Plaintiff thereupon brought this action for damages in the loss of the profit, amounting to $112.20 and recovered judgment in the trial court.

Defendant insisted that the sugar was shipped under a bill of lading containing a provision that the amount of any loss for which it should be liable should be computed on the basis of the value of the property at the place and time of shipment. With this as a basis, defendant says that as plaintiff never paid for the sugar he had not sustained any pecuniary loss. It then claims that it never had any notice of plaintiff's contracts of sales of sugar and that the damages claimed are too remote and speculative. The evidence of sales came through the testimony of one of the members of the plaintiff's firm. He had not made the sales personally, but through a salesman for the company who sent in sales tickets. It further appeared that plaintiff, thinking there was some delay in the car getting to Ft. Scott notified defendant's proper agent and "we had him tracing the car for some days. I was in a hurry for it. The men were all demanding the sugar. Fruit was to be put up, and he was tracing it by wire," and finally this agent was notified by the agent at Ft. Scott that the car was there. It was further shown that defendant was notified by letter four days before the arrival of the car at Ft. Scott to deliver to plaintiff; these words being used in the notice, "It is very important that you notify us day of arrival."

It is insisted by defendant that as plaintiff's witness (who, as stated, was one of the proprietors and the general manager of plaintiff company, and who conducted the business which is the subject of this controversy) did not make the sales personally, his testimony of the sales was hearsay. Defendant is bound by the objection as made at the trial court. The question arose when...