Strahorn-Hutton-Evans Com. Co. v. Western Union Tel. Co.

• Decision Date: 12 May 1903
• Citation: 74 S.W. 876,101 Mo. App. 500
• Parties: STRAHORN-HUTTON-EVANS COMMISSION CO. v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

74 S.W. 876

101 Mo. App. 500

STRAHORN-HUTTON-EVANS COMMISSION CO. v. WESTERN UNION TELEGRAPH CO.

Court of Appeals at St. Louis, Missouri.

May 12, 1903.

TELEGRAPHS—TRANSMISSION OF MESSAGES— ERRORS—LOSS—PROXIMATE CAUSE.

1. After L. had executed a deed of trust on certain cattle to plaintiff, which prohibited him from making any sales except through plaintiff, he was permitted to sell certain of the cattle and account for the proceeds; but, on a subsequent shipment having been made by L. to others, plaintiff telegraphed L. to ship no more cattle covered by their mortgage, except to him, and directed him to instruct the consignees of the cattle last shipped to pay "net proceeds" to plaintiff. By mistake of the telegraph company, the word "net" was transmitted "no." L. collected the proceeds from such consignee, and converted the same to his own use. Held, that the telegram as transmitted did not warrant L. in believing that plaintiff intended that such proceeds should not be paid to him, and that the error of the telegraph company was therefore not the proximate cause of plaintiff's loss.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by the Strahorn-Hutton-Evans Commission Company against the Western Union Telegraph Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Campbell & Thompson, for appellant. Dickson, Smith & Dickson and Douglas W. Robert, for respondent.

Statement of Facts and Opinion.

GOODE, J.

In May, 1899, the plaintiff corporation held a deed of trust in the nature of a chattel mortgage on 1,500 cattle belonging to John T. Lutz, of Meridian, Miss. The deed was made by Lutz to William Hunter, trustee, for the benefit of the plaintiff, on the 9th day of January of said year, at which time the cattle were in Texas; but there was a stipulation that they should be shipped forthwith to Meridian, where they were to remain in Lutz' possession and be cared for by him according to certain agreed terms. Three of the six notes secured by the deed of trust matured April 19th, and the other three May 4, 1899, and altogether they represented an indebtedness of $44,311.49 from Lutz to the plaintiff. The deed provided that Lutz should have no right to dispose of the cattle without the written permission of the holder of the secured notes, and that three days before the maturity of the notes the cattle should be shipped, consigned to the plaintiff at either St. Clair county, Ill., Chicago or Kansas City, and be sold by the plaintiff on commission in the customary way; the proceeds to be applied to the discharge of the secured indebtedness, and a commission of 50 cents a head for making the sale. If any note was not paid when due, or a violation by Lutz of any other condition of the deed of trust occurred, the entire indebtedness became payable instantly, and the trustee was entitled to take possession of and sell the property. After the cattle were transferred to Mississippi, Lutz made some sales, and accounted to the plaintiff for the proceeds. He shipped several lots to Mobile, sold them there, and turned the money over to C. B. Alexander, an agent of the plaintiff's in the South. He also sold one car load in New Orleans, and remitted a check for the price to the plaintiff, which gave him a corresponding credit on his indebtedness. After those transactions, which were conducted by Lutz in his own name, and also after all the notes had matured, he was permitted to continue in possession of the cattle. About May 10th he sold and delivered three car loads to the firm of Christoffer & Inbau, of New Orleans, for $3,000. That firm knew nothing of the deed of trust, or of any restriction on Lutz' power to deal with the cattle as owner at the time of the purchase, and were equally ignorant when they paid for them, according to Christoffer's testimony, who swore they gave checks in payment on May 10th, when the cattle were delivered. Alexander swore that when he called on Christoffer & Inbau about the matter, on May 12th, they said they had not yet paid for the cattle, but would pay Lutz at once, unless legally prevented. Alexander thereupon garnished them in behalf of the plaintiff, but that proceeding proved fruitless. This part of the evidence is not material to the decision of the case, for the declarations of law asked by the plaintiff assumed that payment had been made to Lutz by Christoffer & Inbau before the date of the telegram which is the basis of this action. Plaintiff learned of the last shipment of cattle by Lutz, and sent him the following telegraphic message regarding it, or, rather, delivered the message to the defendant to be sent: "National Stockyards, Ill., May 12, 1899. John Lutz, Meridian, Miss.: You must not ship any more cattle covered by our mortgage to any but this market. Please instruct New Orleans commission firm to pay net proceeds to us of three cars that are there. Answer. Strahorn-Hutton-Evans Com. Co." As the message was delivered to Lutz at Meridian, the word "no" was substituted for "net," so that the sense of the dispatch was that the New Orleans firm should pay "no proceeds" of the...