Turner Lumber & Inv. Co. v. Chicago, R. I. & P. Ry. Co.
| Decision Date | 05 January 1931 |
| Citation | 34 S.W.2d 1009,225 Mo.App. 1002 |
| Parties | TURNER LUMBER & INVESTMENT COMPANY, APPELLANT, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, RESPONDENT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Brown Harris Judge.
AFFIRMED.
Judgment affirmed.
Goodwin Creason for appellant.
Luther Burns, Henry S. Conrad, L. E. Durham, Hale Houts and Ilus M Lee for respondent.
Trimble, P. J., absent.
This is an action in conversion for two carloads of lumber. The damage claimed for the conversion of the first car was $ 628.78 with interest and the second $ 812.58. The case was tried before the court without the aid of a jury. At the close of plaintiff's testimony the court declared the law to be that plaintiff was not entitled to recover and rendered judgment in favor of defendant. Plaintiff has appealed. This is the second appeal in the case. [See Turner Lumber & Investment Co. v. C., R. I. & P. Ry. Co., 16 S.W.2d 705.]
The facts show that on June 26 and 29, 1925, the cars of lumber in question were sold to plaintiff, a corporation, located in Kansas City, Missouri, by the Continental Mill & Lumber Company. The lumber was shipped by that company under straight non-negotiable bills of lading from Waveland, Arkansas to Wister, Oklahoma (a diversion point of the defendant railway) over the line of the defendant. The bills of lading for the two cars were issued respectively on June 26 and June 29, 1925. These bills named the mill company as consignor and the plaintiff as consignee, without any reservations or qualifications. Upon the bills of lading were endorsed the words "for re-consignment." Under a general custom in the lumber trade and the practise had between the mill company and plaintiff in prior sales and shipments of lumber it was understood that the consignor would draw a draft upon the consignee for 80% of the estimated value of the lumber in the cars and it was the custom and general understanding that these drafts would be honored and it was so understood by the plaintiff in the present instance.
Upon each of the invoices covering the two cars of lumber in question were endorsed the words "draft $ 400." Four hundred dollars was estimated by the mill company to be 80% of the value of the lumber in each car. These invoices and drafts were mailed by the mill company to plaintiff in Kansas City. When they were received by plaintiff it understood that drafts in those amounts would be forwarded by the mill company to be honored by the plaintiff when presented. The mill company caused to be sent to a bank in Kansas City drafts for these amounts which were presented to plaintiff for payment two or three days after it received the bills of leading and invoices. However, payment was refused. The first draft was protested for non-payment on June 29, 1925 and the second on July 1, of that year.
Plaintiff sold the cars of lumber to the King Lumber Company of Kansas City and on or about July 2, 1925, after plaintiff had received the bills of lading and after it had refused to pay the drafts, it notified the defendant by telegraph and letter to divert the cars, which were then at Wister, Oklahoma, requesting that the heading of the way-bills show plaintiff as consignor and the King Lumber Company as consignee, and mailed the drafts to the defendant. However, on July 15, 1925, defendant returned to plaintiff the bills of lading and refused to divert the shipments on the ground that the shipper had ordered the cars held and diverted to other consignees.
The facts further show that, on account of defective lumber and shortages in prior shipments made by the mill to plaintiff, the mill company was indebted to plaintiff in the sum of $ 1170 by reason of the fact that plaintiff had paid for the lumber in the prior shipments on the theory and basis that there was no defective lumber or shortages. However, there was no admission on the part of the mill company of this indebtedness. There was no evidence of any off-set of demands, or compromise of claims or of debts, between plaintiff and the mill company. After the plaintiff refused to pay the drafts covering the two cars of lumber in question the mill company offered to accept a $ 500 payment upon the lumber but plaintiff refused to accept this proposition and the mill company notified it that it would proceed to divert the shipments, which it did. The evidence shows that plaintiff made no payment whatever on the lumber. The amount sued for was shown to be the value of the lumber in the cars at Waveland, Arkansas, with which amount plaintiff had credited the mill company.
It is insisted by the plaintiff that it made out a case of conversion of the lumber and that the court erred in giving the declaration of law above referred to. It is plaintiff's contention that the Federal Bill of Lading Act
It is further claimed that if the transaction in question between plaintiff and the mill company was a Missouri contract, then the Missouri Statute and decisions not in conflict with the Federal Act, "having to do with the substantive right of title to the lumber in question control;" that if it was an Arkansas contract, the Missouri law governs, because the Arkansas law is not pleaded and the presumption is that the Arkansas law is the same as that of Missouri; that consequently, the ownership of this shipment is determined by paragraph "a" of section 13562, Revised Statutes 1919, which is part of the Missouri Bill of Lading Act, and reads as follows:
"Where by the bill the goods are deliverable to the buyer or to his agent, or to the order of the buyer or of his agent, the consignor thereby transfers the property in the goods to the buyer;" that as the bills of lading in question were made to plaintiff as consignee and were delivered to plaintiff, without any drafts attached, the title to the lumber was transferred to it.
It is further contended by plaintiff "that in case of the delivery by the consignor of a straight bill of lading in an interstate shipment to the consignee with no draft attached, the carrier, under the Federal Bill of Lading Act, can make no defense of an alleged right or title of a third person in an action brought by the consignee against the carrier for conversion, unless the carrier shall bring the third person into the action, or bring a separate action in which the consignee and the third person are made parties, to determine the ownership of the property in question;" that the Federal Bill of Lading Act in this respect was not complied with by defendant.
It is the contention of the defendant that under the Federal Bill of Lading Act, it was in duty bound to deliver the lumber to the person lawfully entitled to its possession; that as the lumber was sold upon the condition that plaintiff would honor the drafts in question and that, as plaintiff refused to pay them, the title to the lumber did not pass to plaintiff but remained in the mill company and therefore, defendant rightfully complied with the diversion order of that company.
It is well settled that one may not maintain a suit in trover or conversion who has neither the right of property in nor possession of the goods (Frazier v. Railroad, 104 Mo.App. 355, 360; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558, 22 S.W. 813); that under the common law the vesting of the title to the goods in the purchaser may be made to depend upon his performance of some condition and that the purchaser must comply with the condition before he can acquire title to the goods. That condition may be the payment of the price and in such a case unless the price is paid no title passes, although possession of the goods is given to the purchaser. [35 Cyc. 318, 319, 322, 323, 324, 325; 23 R. C. L. 1384, 1385; 24 R. C. L. 23, 440, 441, 445; Coleman v. Reynolds, 207 Mo. 463, 105 S.W. 1070; Johnson-Brinkman Co. v. Central Bank, supra; Howard v. Haas, 131 Mo.App. 499, 109 S.W. 1076; Sharp v. Hawkins, 129 Mo.App. 80, 107 S.W. 1087; Johnston v. Parrott & Barnes, 92 Mo.App. 199; Johnson-Brinkman Co. v. Mo. P. Ry. Co., 72 Mo.App. 437; Strauss-Pitts Co. v. Hirsch & Co., 63 Mo.App. 95; Hall & Robinson v. Mo. P. Ry. Co., 50 Mo.App. 179.] At common law possession of the bill of lading by the consignee or holder was strong evidence of title and right to the possession of the goods, but was only prima-facie and not conclusive. [Scharff v. Meyer, 133 Mo. 428, 445, 34 S.W. 858; Frazier v. Railroad, supra.]
In our opinion neither the Federal Bill of Lading Act (U.S. Code Ann. Title 49, sections 81-124) nor the uniform bill of lading act adopted in this State in 1917 (see sections 13523, 13576, Revised Statutes 1919) changed the common law rule in the respects noted. [Banik v. C. M. & St. P. R. R. Co., 147 Minn. 175, 181.] Under the provisions of section 88 (c) of the Federal Bill of Lading Act, the burden is upon the carrier to establish the existence of a lawful excuse or refusal or failure to deliver the goods in compliance with the demand of the consignee or the holder having possession of the bill of lading.
Section 89, U.S. Code Ann. Title 49, p. 396, provides:
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