St. Louis & S. F. Ry. Co. v. Excello Feed Milling Co.
| Decision Date | 10 November 1919 |
| Docket Number | No. 13326.,13326. |
| Citation | 215 S.W. 755 |
| Court | Missouri Court of Appeals |
| Parties | ST. LOUIS & S. F. RY. CO. v. EXCELLO FEED MILLING CO. |
Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.
"Not to be officially published."
Action by the St. Louis & San Francisco Railway Company against the Excello Feed Milling Company. From judgment for plaintiff, defendant appeals. Reversed.
Culver & Phillip, of St. Joseph, for appellant.
W. F. Evans, of St. Louis, and John E. Dolman, of St. Joseph, for respondent.
In 1912 the defendant entered into several written contracts with the Sugar Planters' Storage & Distributing Company of New Orleans, La., whereby the latter sold and agreed to ship to the former a total of 60 cars of molasses at 5 3/8 cents net cash per gallon f. o. b. plantations in Louisiana. The last contract was for 10 cars, each car to contain 7,000 gallons and the 10 cars to contain a total of 70,000 gallons, for shipment during the month of January, 1913. The gar Planters' Storage & Distributing Company (hereinafter referred to as the distributing company) shipped 50 of the 60 cars contracted for. On or about February 24, 1913, the distributing company shipped 1 car of molasses containing 6,881 gallons, billed to its own order to Tarkio, Mo., and while said car was en route directed the railroad company to divert said car of molasses to its own order at St. Joseph, Mo., notify Excello Feed Milling Company. In reconsigning the shipment plaintiff's agent inadvertently changed the bill of lading so as to make it a straight shipment, as a result of which the car was delivered by the Burlington Railroad Company, a connecting carrier, to the defendant on its premises at St. Joseph, Mo., without the surrender of any bill of lading.
In the meantime the distributing company had drawn a draft on the defendant for the amount of said car of molasses, 6,881 gallons at 5 3/8 cents per gallon, and attached thereto the bill of lading and sent the same to a bank. When the car was delivered to the defendant by the Burlington Railway Company, it was opened by the defendant, and proved to be fermented, whereupon the defendant notified the distributing company that said car had arrived, that it was fermented, and that it refused to accept the same under its contract as a part of said 10 cars of molasses still due the defendant under the contract referred to, whereupon an arrangement was entered into between the distributing company and the defendant whereby it was agreed that the defendant should take said car of molasses at 4 cents per gallon, or for $275.24. At the time said new arrangement was made defendant did not know that the car had originally been billed to shipper's order, or that a draft had been drawn on defendant for the original contract price at 5% cents per gallon and attached to the original bill of lading and sent to a bank for collection, but at that time the distributing company knew that the car had been delivered and the defendant had examined the contents, and that its draft had not been paid. So the distributing company recalled said draft and drew another draft upon the defendant for $275.24, the amount of the purchase price of said car of molasses under the new arrangement at 4 cents per gallon. Before this was done the defendant demanded of the distributing company in February or March, 1913, that it deliver the cars of molasses called for by its contract of August 28, 1912, above referred to. The market price of molasses had advanced, and the distributing company refused to deliver any of said 10 cars. Whereupon the defendant was required to and did go upon the market and purchase 10 cars of molasses and pay therefor the sum of $997.96 more than the contract price at which the distributing company had agreed to deliver said 10 cars of molasses at the time and place they should have been delivered to the defendant under said contract. So in consequence of the failure and refusal of the distributing company to deliver said 10 cars of molasses defendant was damaged in the sum of $997.96, which it was entitled to recover from said distributing company. The distributing company while it was a going concern was located and carried on its business at New Orleans, La. It was insolvent and out of business at the time of the trial. Defendant refused to pay the draft for $275.24, drawn upon it by the distributing company, because the latter company refused to comply with its contract respecting the delivery of said 10 cars of molasses.
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