Turner Looker Company v. Hindman

• Decision Date: 06 April 1923
• Parties: TURNER LOOKER COMPANY, Appellant, v. W. T. HINDMAN et al
• Court: Missouri Supreme Court

250 S.W. 388

298 Mo. 61

TURNER LOOKER COMPANY, Appellant, v. W. T. HINDMAN et al

Supreme Court of Missouri, First Division

April 6, 1923

Transferred from Springfield Court of Appeals.

Reversed and remanded.

J. E Duncan for appellant.

(1) When the shipment of the whiskey and the bill of lading with draft attached arrived at Caruthersville, and defendants were notified of such arrival and said draft was presented for payment to the defendants by the Citizens Trust Company, the contract between the plaintiff and defendants became an executed contract, and the title to said whiskey vested in the defendants, subject to the lien of the plaintiff for the balance of the purchase price, even though said whiskey was shipped to shipper's order, and the plaintiffs are entitled to recover the contract price. Price Brokerage Co. v. Railroad Co., 199 S.W. 732; Ilgenfritz v Railroad Co., 169 Mo.App. 652; Roaring Fork Potato Growers v. Clemons Produce Co., 193 Mo.App. 653; Estis v. Harnden, 153 Mo.App. 381; Hamilton v. Clark, 25 Mo.App. 428; Kuhler v. Tobin, 61 Mo.App. 576; Koening v. Boat Mfg. Co., 155 Mo.App. 685; Ohler v. Fruit Co., 162 Mo.App. 446; Potato Growers Assn. v. Produce Co., 185 Mo.App. 1; Range Co. v. Merc. Co., 120 Mo.App. 438; Ozark Lbr. Co. v. Chicago Lbr. Co., 51 App. 556. (2) While defendants were entitled to a reasonable time after notice to take up the shipment, yet, to permit the whiskey to remain in the warehouse of the railroad for ten or twelve days after said notice is an unreasonable time. Morrell v. Koerner Parker Lumber Co., 51 Mo.App. 600.

Ward & Reeves for respondents.

(1) The authorities cited in appellant's brief do not sustain its contention. None of those cases hold that the title passed to the purchasers merely because the draft was presented to them, but the contrary is the law as laid down by those cases -- that is, the title did not pass until the draft was paid and the bill of lading delivered to the purchasers, which was never done in this case. Especially is this true since our statute makes bills of lading negotiable. Secs. 11956, 11957, R. S. 1909. (a) It is admitted in appellant's brief that the title to the goods did not pass at the time they were delivered to the railroad company for shipment, but it is contended that title passed and vested in the purchasers when the draft was presented to purchasers, although the draft was not paid. We deny that this contention is the law. Where, by the terms of the bill of lading, the vendor makes the property deliverable to his own order, or to his agent, this fact is decisive to show that it was the intention of the vendor to reserve the jus disponendi, and to prevent the property from passing to the vendor until the draft accompanying the bill of lading was paid. Roaring Fork Potato Growers v. Clemons Produce Co., 193 Mo.App. 653; Bank v. Milling Co., 163 Mo.App. 135; Burgess v. Railroad, 176 Mo.App. 257; Cold Storage Co. v. Commission Co., 178 Mo.App. 225; Milling Co. v. Stanley, 132 Mo.App. 308; Bergeman v. Ry. Co., 104 Mo. 77; Davenport National Bank v. Homeyer, 45 Mo. 145. (b) The principle of law is well settled that, where property is destroyed by accident, the loss falls upon the holder of the legal title. Seeligson v. Philbrick, 30 F. 600; Dows v. National Exch. Bank, 91 U.S. 618; North Penn. Ry. Co. v. Commercial Bank, 123 U.S. 727; Portland Flouring Co. v. British & F. M. Ins. Co., 130 F. 860; Tiedeman on Sales, sec. 85; 35 Cyc. 333. (2) By terms of the sale contract the purchase price was to be paid before delivery of the goods, and therefore this fact is another reason why the title to the goods did not pass. The payment of the contract price was a condition precedent to the passing of title to purchasers. Ruediger v. Dennis, 199 Mo.App. 102; Strothers v. McMullen Lbr. Co., 200 Mo. 647; Johnson-Binkman Co. v. Central Bank, 116 Mo. 558; Strauss, Pritz & Co. v. Hirsch & Co., 63 Mo.App. 95; Ruediger v. Dennis, 201 S.W. 943.

LINDSAY, C. Small, C., concurs; Brown, C., not sitting.

OPINION

LINDSAY, C.

Plaintiff sued the defendants in the Circuit Court of Pemiscot County for the sum of $ 3,282.50, the balance alleged to be due on the price of one hundred and twenty-five cases of whiskey sold, and shipped to Caruthersville for defendants. The shipment was made to shipper's order, and a sight draft on defendants for the amount mentioned was attached to the bill of lading. The draft was not paid, and the whiskey while yet in the station of the carrier at Caruthersville was destroyed by fire.

A change of venue was taken, and the case was heard by the Circuit Court of Stoddard County. The defense was that the title to the property at the time of its destruction was in the plaintiff, and that the loss must fall upon the plaintiff. Upon the evidence of plaintiff the Court gave an instruction to the jury that plaintiff could not recover, and directed a verdict for defendants. From the judgment rendered pursuant thereto defendant was allowed an appeal to the Springfield Court of Appeals. On a hearing, two of the judges concurred in the view that the peremptory instruction given by the trial court was error, and that the case should have gone to the jury upon an instruction that if the jury believed plaintiffs' testimony which tended to establish the facts outlined in the majority opinion, the verdict should be for the plaintiff. But, Judge Bradley of that court, dissenting, on the ground that the majority opinion was in conflict with the decision of the Kansas City Court of Appeals in the case of Roaring Fork Potato Growers v. Produce Co., 193 Mo.App. 653, 187 S.W. 617, and with the great weight of authority as well, the case was certified to this court.

The terms of the contract were expressed in writing. Its essential elements, and the subsequent acts of the parties in relation to it, are sufficiently stated in the majority opinion, as follows:

"Plaintiff's salesman took an order from defendants at Caruthersville, Missouri, for 300 cases of whiskey which were, at the time, in bond in a distillery in Kentucky. The whiskey was to be sent in two shipments. One shipment of 175 cases was made and paid for; the second shipment was made, and the balance thereon not paid.

"The contract of purchase provided that the goods were bought f. o. b. distillery, and $ 5 per case was paid at the time. It was agreed that the goods should be shipped to shippers' order and draft for the balance of the price with bill of lading attached sent to Citizens Trust Company, at Caruthersville, and that on arrival of the draft the defendants would pay it and take up the bill of lading and the goods. Plaintiff shipped the goods as agreed by the parties. The draft with bill of lading attached reached Caruthersville before the goods arrived and was presented to defendants for payment, when they asked the bank to hold it until the goods arrived. The goods arrived between the 25th and 30th of May, and on their arrival the depot agent immediately notified defendants of their arrival by phone. The next day, he notified them by postal card, and saw them at least twice afterward and asked them to take the goods away from the depot. On June 6th, plaintiff wrote defendants that they had received no returns on the draft and asked them to honor it. On or about June 9th, and after the goods had remained in the depot ten or twelve days, the depot agent saw one of defendants and again requested that they come and get the goods, and was informed that they would do so the next day. That night the depot and these goods were destroyed by fire. Defendants then refused to pay the draft and this suit followed."

An examination of the record shows that the findings and conclusions as to the facts, stated in the majority opinion, are fully warranted by the evidence. No reason is suggested for the final refusal of defendants to pay the draft except the single fact that the goods had been destroyed. The goods being so destroyed, pending the situation thus outlined, who, as between plaintiff and defendants, must bear the loss? Before the fire the plaintiff had done all that its contract required it to do, and was in no way in default. Defendants' failure to pay the draft during the ten or twelve days while the property remained in the depot was a breach of the contract. The draft and bill of lading were being held by plaintiff's agent, the bank, after demand made of payment. The plaintiff was urging its payment. The station agent of the carrier, also plaintiff's agent, was urging defendants to remove the goods.

It is a well-settled rule that the loss of goods destroyed by accident falls upon him who at the time holds the title. In the case at bar the shipment of the whiskey under the bill of lading, to shipper's order, accompanied by draft upon the purchasers, followed by failure to pay the draft and take the property before its destruction, was taken by the trial court as conclusive that the title was in the seller, at the time of the fire, and that the loss must fall upon the seller. It is generally held that when a vendor delivers goods to a carrier, consigned to the vendee, it is a delivery to the vendee, and title passes; but that if he delivers to the carrier, taking a bill of lading to himself as consignee, he retains the title until the purchase price is paid or tendered. [Scharff v. Meyer, 133 Mo. 428 445, 34 S.W. 858; Hunter Brothers Milling Co. v. Stanley, 132...