The St. Louis & San Francisco Railway Company v. Adams

• Decision Date: 01 June 1896
• Docket Number: 138
• Citation: 45 P. 920,4 Kan.App. 305
• Court: Kansas Court of Appeals
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. EMMETT C. ADAMS, as Agent for Elizabeth B. Weaver et al

45 P. 920

4 Kan.App. 305

THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. EMMETT C. ADAMS, as Agent for Elizabeth B. Weaver et al

No. 138

Court of Appeals of Kansas, Southern Department, Eastern Division

June 1, 1896

Opinion Filed July 13, 1896.

MEMORANDUM.-- Error from Montgomery district court; J. D McCUE, judge. Action by Emmett C. Adams, as agent for Elizabeth B. Weaver and others, against The St. Louis &amp San Francisco Railway Company to recover on a draft. Judgment for plaintiff. Defendant brings the case to this court. Affirmed. The opinion herein, filed July 13, 1896, states the material facts.

Judgment affirmed.

J. W. Gleed, and C. Hamilton, for plaintiff in error.

Joseph Chandler, for defendant in error.

JOHNSON P. J. All the Judges concurring.

OPINION

JOHNSON, P. J.:

This action was commenced in the district court of Montgomery county, Kansas, on the 5th day of May, 1891, by Emmett C. Adams, for Adams, Beck & Co., a copartnership, against the St. Louis & San Francisco Railway Company, to recover the sum of $ 501.25 on a certain draft drawn by Gideon & Wallace, attached to a bill of lading issued by the station agent of the plaintiff in error, at its station at Cherryvale, Kan., dated January 12, 1891, reciting that the said railway company had received of Gideon & Wallace, at Cherryvale, Kan., a car, No. 373657, of live poultry, 20,000 pounds, consigned to Adams, Beck & Co., New Orleans, La.

The plaintiffs below in their petition alleged that they were a partnership, and as such, on and long before the 12th day of January, 1891, were doing business as partners engaged in carrying on the business of commission poultry dealers in New Orleans, La., buying, selling, shipping and receiving shipments of poultry, and making advances on bills of lading and consignments of poultry; that on the 12th day of January, 1891, the St. Louis & San Francisco Railway Company was a corporation doing business as a railway company in Montgomery county, Kansas, and that its line of railroad extended through the town of Cherryvale and other points therein, and was during said time engaged in operating said line of railway through, into and by said city and county aforesaid, carrying and transporting all such property as is usual for railway companies to carry and transport; that on said 12th day of January, 1891, and some time prior thereto, Gideon & Wallace were engaged in shipping live poultry from said city of Cherryvale, Kan., and other points in said state to the city of New Orleans, La., and other points, over said railway and connecting lines, consigned to the plaintiffs and others, receiving from said railway agents bills of lading therefor, and drawing drafts upon these plaintiffs as commission merchants as aforesaid, and others, against such shipments; that on said 12th day of January, 1891, at the city of Cherryvale, Kan., said defendant, by its duly authorized agent, issued to said Gideon & Wallace an original bill of lading of that date, stating that said defendant had received of said Gideon & Wallace, at Cherryvale, Kan., a car, No. 373657, of live poultry, 20,000 pounds, consigned to these plaintiffs by their said firm name, at their place of business in New Orleans, La., a copy of the bill of lading being attached to said petition; that 20,000 pounds of live poultry at said time and place were of the value of $ 1,000; that upon the same day the said Gideon & Wallace took said bill of lading to the First National Bank at Cherryvale, Kan., and drew a draft of that date, with said bill of lading attached thereto, on these plaintiffs by their firm name at their said place of business, for the sum of $ 500, with exchange, payable to the order of Charles A. Mitchell, cashier of said bank, who duly indorsed the same to the National Bank of Kansas City, Mo., for deposit and credit of said First National Bank of Cherryvale, Kan., and said National Bank of Kansas City indorsed the same to the Merchants National Bank of St. Louis, Mo., and the said last-named bank indorsed the same to the State National Bank of New Orleans, La.; and on the 16th day of January, 1891, the said plaintiffs in good faith, wholly relying upon said bill of lading attached to said draft, paid said draft through the New Orleans clearinghouse to the Metropolitan Bank of New Orleans, La., paying to said bank $ 500, the face of said draft, and $ 1.25 exchange thereon, a copy of the draft being attached to said petition; that said defendant after issuing said bill of lading forwarded said car of poultry to Altamont, Labette county, Kan., on its own road, and no further, and never forwarded said poultry or any portion thereof any further than to said station of Altamont, and never transported the same or any portion thereof to New Orleans by its own or any connecting line, and did not deliver the same or any part thereof to any connecting line, and that plaintiffs never received said car of poultry or any portion thereof; that said Gideon & Wallace, and each and both of them, absconded, and they, and each of them, are worthless and wholly insolvent, and that there is now due the plaintiffs from the defendant the sum of $ 501.25 so paid by them and advanced on said bill of lading, with interest from date, for which they claim judgment. To this petition the defendant below filed the following answer:

"Now comes the defendant in the above-entitled cause, and for answer to the plaintiffs' petition filed herein, says: It admits that is a corporation engaged in the operation of a line of railroad, and says that, on January 12, 1891, Gideon & Wallace put five crates of poultry into one of its cars, No. 373657, at Cherryvale, Kan., and announced to the station-agent of said defendant at that place that they would finish loading said car with poultry at Altamont, Oswego, Hallowell, and Columbus, at which places arrangements were made for the car to stop; that said station-agent at Cherryvale issued to Gideon & Wallace a bill of lading for said car to be so loaded at. Altamont, Oswego, Hallowell, and Columbus, and forwarded said car with five crates of poultry therein contained to Altamont, said station, for further loading; that the persons placed in charge of said poultry by said Gideon & Wallace went with said car to said station of Altamont, but at said station of Altamont abandoned the same, and absconded and disappeared from the country; that said car remained at said station of Altamont with. said five crates of poultry in the same waiting for said Gideon & Wallace, or their agent, to come and finish loading the same, until said poultry commenced to die, and it was necessary, in order to save a portion of their value, to sell the same; that this defendant thereupon sold said five crates of poultry for $ 9.03, which was the full value of said poultry at said time in the condition in which it then was. And defendant further says, that it did not at any time receive from said Gideon & Wallace for shipment to said plaintiffs any more than five crates of poultry, as hereinbefore stated. This defendant further denies that its said agent at Cherryvale had any authority to issue any bill of lading for any property not actually received by him for transportation. This defendant hereby offers and tenders to said plaintiffs the amount of money, to wit, $ 9.03, received for the sale of said poultry at Altamont, or offers to confess judgment for said amount of $ 9.03, together with all costs accruing to the date of filing of this answer."

This answer was verified in the following manner:

"State of Kansas, County of Shawnee, ss.

"A. A. Hurd, of lawful age, being first duly sworn, says: He is one of the attorneys for the above-named defendant; that he has read the above and foregoing answer, and that the matters and things therein set forth are true.--A. A. HURD.

"Subscribed and sworn to before me, this 17th day of July, 1891. GEO. N. HOLMES, Notary Public."

These were all the pleadings filed in this action. Plaintiffs below moved the court to render judgment in their favor for the amount claimed by them in their petition, and against the defendant, on the pleadings herein, for the reason that the defendant's answer states no defense to the...