State v. Cochrane

• Decision Date: 01 April 1915
• Docket Number: No. 17242.,17242.
• Citation: 175 S.W. 599,264 Mo. 581
• Court: Missouri Supreme Court
• Parties: STATE, to Use of HUBBARD & MOFFITT COMMISSION CO., v. COCHRANE et al.

175 S.W. 599

264 Mo. 581

STATE, to Use of HUBBARD & MOFFITT COMMISSION CO., v. COCHRANE et al.

No. 17242.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by the People of the State of Missouri, to the use of the Hubbard & Moffitt Commission Company, against Manning W. Cochrane and another and the United Surety Company. Judgment for the plaintiff, and the United Surety Company appeals. Affirmed.

The petition in this case alleges, in substance, that the plaintiff corporation is organized for business purposes in the city of St. Louis; that the defendant Cochrane Grain Company is a copartnership, and the defendant the United Surety Company, is a foreign corporation licensed to do the business in the state of Missouri of executing contracts of indemnity and bonds and to become surety on such obligations; that on the 26th of February the Cochrane Company applied to the circuit court of the city of St. Louis for a license to conduct a public elevator for the storage of grain, known as Exchange Elevator, which application was sustained upon the condition of the execution by said firm of a bond with sufficient surety. The petition alleges that thereupon the said Cochrane Grain Company executed the bond prescribed by the circuit court, which was duly approved on the 26th of February, 1909. Said bond was for the sum of $5,000, and conditioned, to wit:

"Now, therefore, if said licensee shall, faithfully perform his or their duties as public warehouseman or warehousemen, under the laws of Missouri, and pay, satisfy, or perform any and all penalties found by due course of law for the violation of any clause of the statute of said state relating to the inspection of grain and to public warehousemen, and shall also fully and unreservedly comply with the laws of said state relating to the inspection of grain and to public warehousemen, then this obligation shall be void; but otherwise remain in full force.

"Approved in open court this 26th day of February, 1909.

                "Cochrane Grain 06
                    "By Manning W. Cochrane,        [Seal.]
                "Manning W. Cochrane.               [Seal.]
                "Thos. Cochrane.                    [Seal.]
                "United Surety Co
                   "G. A. C. Carr, Res. V. P.       [Seal.]
                   "John L. Moore, Res. Asst. Sec.  [Seal.]"
                

The petition further alleges that the said Cochrane Grain Company have been guilty of a breach of the above bond in this: That in the prosecution of their business as public warehousemen under said license they made an elevator receipt in due form for 1,070 bushels and 40 pounds of No. 3 white corn, thereby acknowledging the receipt of said product and their obligation to deliver upon the due surrender of said receipt; that said receipt in due course of trade was transferred to plaintiff on the 18th of October, 1910, whereby they became entitled to demand the grain represented by it; that plaintiffs have demanded compliance with the terms of said receipt by the surrender to them of the grain called for, which defendants have refused to make although plaintiffs have tendered the payment of all charges for the storage of the product represented by said receipt all to the damage of plaintiffs in the sum of $513.95. Wherefore they prayed judgment for the penalty of said bond to be satisfied upon payment of said sum of $513.95 with interest.

The second count of the petition was based upon a similar receipt and the refusal of the defendant to comply with its terms to the damage of plaintiffs in the sum of $927.67. Similar allegations as to the liability of defendants are contained in said count, and judgment prayed for the amount of damages therein specified. Manning W. Cochrane filed a general denial. The United Surety Company filed an answer, admitting that a license was granted to the Cochrane Grain Company, as alleged in the petition, admitting that it signed as surety the bond mentioned and set forth in said petition, and further answered that the license and bond were issued and" made to comply with the provisions of the grain inspection law of 1907 (Laws of 1907, p. 285); that sections 7623, 7625, and 7630 of said enactment are unconstitutional and void, and all other sections thereof depending on these particular sections are likewise null and void; wherefore, at the time said license was issued and said bond was executed, there were no valid statutes in Missouri defining a public warehouse for the storage of grain, or authorizing the circuit court to license a. warehouse for the storage of grain for the public, or authorizing or requiring a bond to be given by persons desiring to conduct such grain elevator; that there were no valid laws or statutes in force regulating the business or creating any duties of public warehousemen, or relating to the inspection of grain, or authorizing suit by any persons holding elevator receipts upon the bond pleaded in the first count; that for these reasons, the license issued by the circuit court to said Cochrane Grain Company was void, "granting no rights to said grain company not already possessed by it"; wherefore, the bond signed by the defendant the United Surety Company was without consideration and void, and imposed no obligation upon it. An answer containing similar defenses was filed by the United Surety Company to the second count of the petition. Issue was taken by reply. On the trial it was conceded that the evidence tended to prove the allegations set forth in plaintiff's petition. It was further shown that the United Surety Company signed a bond in question in consideration of the promise or payment of a premium therefor by the Cochrane Grain Company. The jury returned a verdict for the amount of damages claimed in the second counts of plaintiff's petition. From a judgment thereon, the defendant surety company duly appealed to this court because of the constitutional questions raised in the pleadings.

Ferriss, Zumbalen & Ferriss, of St. Louis, for appellant. Richard A. Jones, of St. Louis, for respondent.

BOND, T. (after stating the facts as above).

I. A warehouseman is a person or corporation lawfully engaged in the business of storing goods for hire. The business is public or private, as it may be conducted for the storage of the goods of the general public, or for those of certain persons. It was an avocation well known recognized, and defined at common law, which also established the rights and duties arising from this form of bailment. It includes the storage of an kinds of personal property, grain, cotton, fruit, and other farm products, horses, cattle, hogs, and other live stock, goods and other articles of merchandise, household furniture and effects, as well as valuables kept in safe deposits. The extent and variety of the business, including within its scope the subjects of the chief industry of the people of the state, as well as the common articles of commerce, early evolved the legal principle that the conduct of this business necessarily affected the public and made its regulation a proper exercise of the, police power of the state and federal governments. Munn v. Ill., 94 U. S. 113, 24 L. Ed. 77.

The doctrine that this calling affects the public interests, and hence requires wholesome supervision and control by the lawmaking bodies, has now become a part of the jurisprudence of the...