T. J. Moss Tie Co. v. Stamp

• Decision Date: 04 March 1930
• Docket Number: No. 20910.,20910.
• Citation: 25 S.W.2d 138
• Parties: T. J. MOSS TIE CO. v. STAMP.
• Court: Missouri Court of Appeals

25 S.W.2d 138

T. J. MOSS TIE CO. v. STAMP.

No. 20910.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

As Modified on Denial of Rehearing March 18, 1930.

Appeal from Circuit Court, St. Francois County; B. H. Boyer, Judge.

"Not to be officially published."

Action by the T. J. Moss Tie Company against R. I. Stamp. From judgment for defendant, plaintiff appeals.

Reversed and remanded, with directions.

Davis & Damron, of Fredericktown, for appellant.

Edgar & Banta, of Ironton, for respondent.

BENNICK, C.

This is an action founded upon a contract for the sale by plaintiff to defendant of a number of railroad crossties. The verdict of the jury was for defendant, and plaintiff has duly appealed.

Plaintiff is a corporation engaged in the purchase and sale of ties, with a district office at Cape Girardeau, Mo., under the supervision of W. W. Davis, its general superintendent. In the territory covered by the Cape Girardeau office is the city of Fredericktown, where plaintiff has a yard, which in 1924, when the transaction involved in this suit took place, was in charge of one J. R. Mihlfeld, whose duties consisted of buying and paying for ties, looking after the loading of shipments, and reporting on the business of the yard to headquarters at Cape Girardeau. There seems to be no dispute between the parties about the fact that Mihlfeld had no authority to sell ties for his employer.

Defendant resides and has his place of business in Des Arc, Mo., and, prior to the deal out of which this suit has sprung, he had bought several cars of ties from plaintiff.

On October 21, 1924, defendant called at the Fredericktown yard and advised Mihlfeld of his willingness to purchase six hundred cull ties then on hand, at the price of twenty cents a tie. Mihlfeld at once informed defendant that he had no authority to sell ties, whereupon defendant told him of his previous dealings with Davis, and the suggestion was made that he would communicate the offer to Davis over the telephone. Mihlfeld then called Davis, and received authority from him to accept defendant's offer, but, whether the acceptance was communicated to defendant, the parties disagreed; Mihlfeld testifying that he told defendant of the acceptance the same day while he was yet in Fredericktown, and defendant testifying that Mihlfeld was unable to get in touch with Davis until after he had left Fredericktown for his home in Des Arc.

Accepting defendant's version of the facts, as we must, with all controversies resolved in his favor by the verdict of the jury, we have defendant's testimony that he told Mihlfeld to load the ties in the event that Davis did accept his proposition, and, further, that he prepared and handed to Mihlfeld a bill of lading for the shipment, which was complete in all respects save that the car number and initials and the number of ties loaded were yet to be inserted. Such bill of lading was introduced in evidence as Plaintiff's Exhibit 1, and showed defendant both as consignor at Fredericktown, and also as consignee at the destination of the shipment, which was Wiggins Ferry, in the city of St. Louis. Defendant then requested Mihlfeld to mail the bill of lading, together with an invoice, to him at Des Arc as soon as the ties were loaded, so that he might reconsign the car; and Mihlfeld promised to attend to the matter for defendant just as he had been instructed.

On the following day, the car moved out as specified in the bill of lading, but, instead of mailing the bill of lading to defendant at Des Arc as he had promised to do, Mihlfeld sent it to Davis at Cape Girardeau. Davis testified that some ten days later he prepared an invoice for defendant in the usual course of business, and deposited it in the United States mails at Cape Girardeau, although defendant testified that he never received it, and plaintiff makes no claim that he ever had the bill of lading in his possession.

It appears that the several shipments of ties by defendant were being reconsigned and sold by him to one H. L. Angerer, in St. Louis, and there was testimony from defendant's partner, G. W. Brooks, that defendant had asked Mihlfeld for the bill of lading in this instance so that he could reconsign this particular shipment to Angerer. The latter testified that he had an agreement with defendant to accept ties shipped by him to Wiggins Ferry, that it was the usual practice for defendant to send him an invoice along with each car that moved, and that, while he received no invoice for this particular shipment, he did receive the car at the point of destination. Beyond this, the records of the railroad company showed that the freight charges, amounting to the sum of $106.87, were paid by Angerer.

Plaintiff's counsel repeatedly attempted to show by Angerer that he received this particular car from defendant, but the court consistently sustained objections to such line of inquiry, upon the theory that it was not proper for the witness to testify that he received the ties from defendant unless it was first shown that he had received an invoice from defendant for the shipment. Defendant was permitted to testify in rebuttal, however, that he had not sold the particular carload of ties to Angerer, that he had received no payment from him therefor, and that he had not authorized him to pay the freight charges or to accept the shipment from the railroad company.

Suit was originally brought in the circuit court of Iron county. The petition filed, to which no amendment has been made, recited that plaintiff had sold and delivered to defendant six hundred ties, for the agreed price and sum of $120, to be paid for on delivery, and that delivery had been made and payment refused. The answer filed by defendant was a general denial; and, after a trial on the issues joined, a verdict was returned in favor of defendant, from which plaintiff appealed to the Springfield Court of Appeals, by which the judgment was reversed and the cause remanded. T. J. Moss Tie Co. v. Stamp (Mo. App.) 7 S.W.(2d) 407.

The court held from the pleadings and facts before it that the loading of the ties on the car, and the consignment of the same to defendant, after the approval of Davis had been secured, completed the sale, and passed the title to defendant, with the carrier as defendant's agent, irrespective of whether the bill of lading was sent to defendant, and that any breach by plaintiff of an agreement to send the bill of lading to defendant did not prevent passing of title, but was merely a breach of contract, and a matter of defense, as to which defendant had the burden of proving that the bill of lading was not sent, and that by reason thereof he had failed to receive the ties.

The reversal of the judgment was for error in an instruction given on behalf of defendant, which required plaintiff to prove, not only that it had sold and delivered to defendant the particular carload of ties, but also that the bill of lading was delivered to defendant within a reasonable time after the date of shipment. The court very properly held that, under a petition charging sale and delivery of ties for an agreed price which had not been paid, and with defendant interposing only a general denial thereto, plaintiff was merely required to prove the sale and delivery, and the price agreed upon, and was not required to assume the additional burden of showing that the bill of lading was delivered to defendant within a reasonable time.

Beyond this it is well to note the further holding of the court that the failure of plaintiff to have sent the bill of lading to defendant would be no defense to this action for the price, if it should be made to appear that defendant actually received the shipment of ties and resold them to another party. It seems that Angerer's connection with the transaction was not shown at the previous trial, but that the reference...