Tom Boy Stores, Inc. v. Douglas-Guardian Warehouse, 26466.
| Decision Date | 04 April 1944 |
| Docket Number | No. 26466.,26466. |
| Citation | 179 S.W.2d 145 |
| Parties | TOM BOY STORES, INC., APPELLANT, v. DOUGLAS-GUARDIAN WAREHOUSE CORPORATION, RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis. — Hon. Robert J. Kirkwood, Judge.
AFFIRMED.
John C. Vogel for appellant.
(1) (a) Instruction 4 is erroneous under Section 240, Chapter 114, Smith-Hurd Ill. Ann. Statutes because the warehouse receipts were not "properly endorsed" to White House Canneries, and under Section 241 (c) because that section does not justify a delivery to the depositor after he has endorsed and transferred the receipts. (b) It erroneously directs a verdict without reference to the provisions of Section 242; defendant knew that plaintiff was the owner of the receipts, and there was evidence from which the jury could find that defendant had information that delivery to White House Canneries would be delivery to one not lawfully entitled to possession of the asparagus. Wall v. American Railway Express Co., 220 Mo. App. 989, 272 S.W. 76; Davis v. Fruita Mer. Co., 74 Colo. 247, 220 Pac. 983; Farmer's Bank of Weston v. Ellis, 122 Ore. 266, 258 Pac. 186; Atlantic Coast Line R. Co. v. Roe, 91 Fla. 762, 109 So. 205; Louisville & Nashville R. Co. v. Mengel, 220 Ky. 289, 295 S.W. 183; Pennsylvania R. Co. v. Brown, 111 F. (2d) 983; Werth v. Ollis, 70 Mo. App. 318. (c) It erroneously advised the jury that the receipts were endorsed in blank. (d) It erroneously instructed the jury, in effect, that if White House Canneries delivered the receipts and offered to pay the accrued storage and release charges, it was defendant's duty to release the merchandise. (2) (a) Instruction 5 erroneously directed a verdict for defendant without requiring a finding that the custom hypothesized therein was known to plaintiff or was so general and universal that knowledge thereof by plaintiff must be presumed. Goslin v. Kurn (Mo.), 173 S.W. (2d) 79; Manzke v. Goldenberg, 149 Mo. App. 12, 129 S.W. 32; Pankey v. Atchison, Topeka & Santa Fe Ry. Co., 180 Mo. App. 185, 168 S.W. 274; McMiens v. United Rys. Co., 274 Mo. 326, 202 S.W. 1082; Porterfield v. Amercan Surety Co., 201 Mo. App. 8, 210 S.W. 119; International Shoe Co. v. Lipshutz, 72 S.W. (2d) 122. (b) It erroneously instructed the jury to find for defendant upon finding facts establishing an illegal custom; one attempting to nullify a valid law. 25 C.J.S., p. 91; Shafir v. Carroll, 309 Mo. 458, 274 S.W. 755; Syme Eagle & Co. v. Joplin Grocer Co., 206 Mo. App. 357, 229 S.W. 246; Anderson v. Dail, 229 Mo. App. 272, 77 S.W. (2d) 69; Farm & Home S. & L. Assn. v. Stubbs. 231 Mo. App. 87, 98 S.W. (2d) 320; State ex rel. v. Williams, 346 Mo. 1003, 144 S.W. (2d) 98; Howat v. International Union, 291 Ill. App. 623, 10 N.E. (2d) 367; Entwhistle v. Henke, 211 Ill. 273, 71 N.E. 990; Young v. McKittrick, 267 Ill. App. 267; Minor v. Lynch, 285 Ill. App. 86; Geiselman v. Roddinghaus, 158 Ill. App. 316. (3) Instruction 6 is unsupported by the evidence; there was no evidence that plaintiff delivered the receipts to White House Canneries for the purpose of having it secure the release of the merchandise to pack and ship the same to plaintiff or that it was plaintiff's agent to receive and pack the goods.
John F. Evans for respondent.
(1) Under the evidence, there was no conversion of the merchandise by defendant, and release was made in accordance with the law. Illinois Uniform Warehouse Act, Chapter 114, Smith-Hurd Ill. Ann. Statutes, secs. 240 and 241. Plaintiff cannot complain of errors in instructions where no right of recovery existed under the evidence and the law. Schroder v. Barrow-Dady Motor Co., 111 S.W. (2d) 66; United Construction Co. v. City, 334 Mo. 1006, 69 S.W. (2d) 639. (2) Instruction 4 correctly submitted the issue of conversion under the Illinois statute. (3) Instruction 5 correctly submitted the issue of custom and usage. Mooney v. Terminal R.R. Assn., 176 S.W. (2d) 605; International Shoe Co. v. Lipshutz, 72 S.W. (2d) 122. When that instruction is read in connection with instructions 1 and 2, the jury were fully advised concerning the defense of custom and usage, and there was no error in the submission of this issue. McDonald v. K.C. Gas Co., 332 Mo. 356, 59 S.W. (2d) 37; Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 98 S.W. (2d) 978; Mueller v. Schien, 176 S.W. (2d) 449; Glader v. City of Richmond Heights, 121 S.W. (2d) 254; City v. Hunze, 314 Mo. 438, 284 S.W. 471; Morley v. Prendiville, 316 Mo. 1094, 295 S.W. 563; Keene v. City of Springfield, 152 S.W. (2d) 220. (4) The evidence fully supports the inference that plaintiff appointed White House Canneries its agent to secure release and shipment of the merchandise, and instruction 6, submitting this issue, is free from error. Restatement of the Law of Agency, Chap. 3, par. 34; Wind v. Bank of Maplewood, 58 S.W. (2d) 332. (5) The verdict was for the right party, and there are no errors materially affecting the merits. Sec. 1228, R.S. Mo. 1939; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W. (2d) 390.
This is an appeal by plaintiff from an adverse judgment, in an action against the Douglas-Guardian Warehouse Corporation, respondent herein, for damages for an alleged conversion of 250 cases of canned asparagus.
The petition alleged that the defendant was a public warehouseman for hire, which maintained a warehouse known as Warehouse No. 1, at Peoria, Illinois; that on May 17, 1940, said warehouse issued two negotiable warehouse receipts, Nos. GS 23461 and GS 23462, each for 250 cases of asparagus; that on December 6, 1940, plaintiff was the owner of said warehouse receipts and entitled to possession of the said asparagus, but that defendant on said date converted said asparagus to its own use, and disposed of it to plaintiff's damage in the sum of $1275.
The defendant's amended answer, on which the case was tried, in addition to a general denial, contained a plea that under the Uniform Warehouse Receipts Act in force in Illinois, it was required to deliver, and did deliver, the asparagus to a person in possession of said receipts, which receipts had been endorsed in blank by the person to whom delivery was promised. The answer contained a plea that the person to whom delivery was made was acting with authority as the agent of the plaintiff in securing delivery of said goods and received said goods on behalf of the plaintiff; and, the answer contained a further plea that a trade custom existed which authorized delivery of the stored goods to plaintiff's agent, the original depositor.
Plaintiff's reply, also a general denial, contained an allegation denying that said receipts at the time were endorsed in blank, and averring that they were endorsed by plaintiff for delivery only. The reply further alleged that under the Uniform Warehouse Receipts Act a warehouseman is liable for conversion if he had information that the delivery about to be made was to one not lawfully entitled to the possession of the goods; and, the reply further alleged that the defendant at the time of delivery had full knowledge and information that the plaintiff alone was entitled to possession of the goods.
The evidence showed that defendant was engaged in the warehouse business, and in 1939 had set up a field warehouse known as Warehouse No. 1, in the plant of the White House Canners, Inc., in Peoria, Illinois. The field warehousing system is used primarily to make warehouse receipts available for the borrowing of money, and is used extensively in the canning industry. It is the practice for the warehouse company to lease a portion of the canner's premises, to segregate it from the remainder of the premises so that the warehouse company has undisputed possession, to post signs, and to place a representative in charge, known as a custodian or bonded representative. It then issues warehouse receipts covering merchandise placed by the canner in the warehouse portion of the building. Warehouse No. 1, Peoria, Illinois, was located on the fourth floor of the White House Canneries building in Peoria, Illinois. This floor was barricaded off from the rest of the building and the door kept locked. The key to that portion of the building was in the possession of the respondent's bonded representative or custodian, Cecil Bilbrey, who until his employment by respondent had been a foreman in the canning department of the White House Canneries.
The case involves a transaction for the sale and delivery of 500 cases of asparagus through two separate negotiable warehouse receipts. The asparagus had been canned and processed by the White House Canneries, Inc., who operated the canning factory in which respondent's warehouse was located. The goods were stored in said warehouse, and respondent issued two negotiable receipts for same, each receipting for 250 cases. These receipts certified that the warehouseman had received in storage said 250 cases of asparagus "for the account of White House Canneries, Inc., or order," "subject to the terms and conditions," set out in the receipts, "to be delivered to owner or holder of this receipt, upon its surrender, properly endorsed." The body of the receipts recited that the warehouseman retained a lien upon the goods for all storage charges and other charges and expenses covered by the Uniform Warehouse Receipts Act of the state.
In June, 1940, the plaintiff purchased from Mr. Oscar Fischer, a food broker who represented White House Canneries, Inc., in St. Louis, the 500 cases (2,000 dozen cans) at a price. of $1.27½ per dozen, f.o.b. St. Louis, with all storage, packing, and shipping charges to be paid by White House Canneries, Inc. Plaintiff did not, at the time, take delivery of the asparagus, but accepted delivery of the two warehouse receipts, which contained, at the regular endorsement space on the back of the receipts, the...
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