St. Louis & S. F. R. Co. v. Allen
Decision Date | 09 January 1912 |
Citation | 120 P. 1090,31 Okla. 248,1912 OK 67 |
Parties | ST. LOUIS & S. F. R. CO. v. ALLEN. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
Prior to the 17th day of October, 1907, L. O. A., of P., ordered from W.-M. Co., of O., a car of coal to be shipped from H. to F. On said date said car, containing 76,800 pounds, was shipped by W.-M. Co. over plaintiff in error's line of railroad to W.-M. Co., at P., shipper's order "Notify L. O. A." The bill of lading so drawn and draft for the amount of the invoice, including freight, was delivered for collection to W. F.'s agent at P., who was also the agent of plaintiff in error at P. The car of coal arrived at P. on the 28th day of November, 1907. After it arrived, and on the same day, L. O. A. paid the draft. L. O A. completed the unloading of the car on November 30, 1907. After having weighed the coal unloaded from said car, he found that he had received 67,880, instead of 76,800, pounds as called for by the bill of lading. A.'s receipt shows W.-M. Co. to be both the consignor and the consignee, and states, "Notify L. O. A." There is no contention that W.-M. Co. had assigned its right of action to A. Held, that A. was not entitled to recover, as he showed no title in himself prior to the time he paid the draft and received the bill of lading; all damage occurring prior to that time.
Error from Kay County Court; Claude Duval, Judge.
Action by L. O. Allen against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed, with instructions to grant a new trial.
W. J Evans, R. A. Kleinschmidt, and W. C. Mitchell, for plaintiff in error.
James Q. Louthan, for defendant in error.
This proceeding in error is to review a judgment, wherein the defendant in error, as plaintiff, sued the plaintiff in error, as defendant.
Prior to the 17th day of October, 1907, the plaintiff, L. O. Allen, of Peckham, Okl., ordered from the Wise-Moist Coal Company of Oklahoma City, Okl., a car of Henryetta lump coal to be shipped from Henryetta, Okl., to Peckham, Okl. On said date, S. F. car No. 16439, containing 76,800 pounds of Henryetta lump coal, was shipped by the Wise-Moist Coal Company over defendant's line of railroad to themselves (Wise-Moist Coal Company), Peckham, Okl., shipper's order, "Notify L. O. Allen," and bill of lading so drawn, and draft for the amount of the invoice, including freight, was delivered for collection to the Wells Fargo Express Company's agent at Peckham, who was also the defendant's agent at Peckham. The car of coal arrived at Peckham on the 29th day of November, 1907, and after its arrival, and on the date therefor, plaintiff paid the draft.
Plaintiff completed the unloading of the car on the 30th day of November, 1907, and, after having weighed the coal unloaded from said car, found that he had received 67,880 pounds, instead of 76,800 pounds, as called for by the billing. Plaintiff's receipt shows the Wise-Moist Company to be the consignor and consignee, and states: "Notify L. O. Allen."
In Elliott on Railroads, vol. 4 (2d Ed.) § 1427, p. 64, it is said:
In 1 Hutchinson on Carriers (3d Ed.) § 187, at page 203, it is said: See, also, authorities cited in footnotes 15, 16, and 17.
In 1 Mechem on Sales, § 774, at page 648, it is said: "Where the seller takes a bill of lading which expressly stipulates that the goods are to be delivered, at the point of destination, to himself or agent, or to his order or assigns, there is the clearest possible evidence upon the face of the transaction that, notwithstanding such an appropriation of the goods as might have been sufficient to transfer the title to the buyer, the seller has determined to prevent this result by keeping the goods within his own control."
In Dows v. National Exchange Bank, 91 U.S. 618, 23 L.Ed. 214, it was held:
In Seelingson et al. v. Philbrick (C. C.) 30 F. 600, it is said:
...
To continue reading
Request your trial