Webster v. Bear

• Decision Date: 07 February 1910
• Citation: 125 S.W. 815,141 Mo. App. 531
• Parties: WEBSTER v. BEAR.
• Court: Missouri Court of Appeals

125 S.W. 815

141 Mo. App. 531

WEBSTER v. BEAR.

Kansas City Court of Appeals. Missouri.

February 7, 1910.

Rehearing Denied February 21, 1910.

1. CARRIERS (§ 58) — BILL OF LADING — TRANSFER — TITLE ACQUIRED.

Transfer of a bill of lading for value by indorsement and delivery passes to the transferee whatever title the transferror has to the property at the time; and that only.

2. CARRIERS (§ 58) — BILL OF LADING — TRANSFER — TITLE ACQUIRED — ESTOPPEL.

Plaintiff sold to F. 347 cases of eggs, and, at direction of F., shipped them consigned to defendant. In the same car plaintiff shipped 52 other cases of eggs; and attached to the bill

of lading, accompanying the draft for the 347 cases drawn on F., a statement showing this fact, and that the 52 cases were consigned to defendant for sale on plaintiff's account. Held, that this was such precaution to notify the consignee of the facts that plaintiff was not estopped to assert title to the 52 cases against F.'s transferee of the bill of lading.

3. EVIDENCE (§ 179) — COPIES OF INSTRUMENTS.

A shipper of goods not having it in his power to produce the original of a statement which he attached to a bill of lading, the duplicate which he retained is competent evidence for him.

4. TRIAL (§ 380) — TRIAL BY COURT — CONSIDERATION OF EVIDENCE OFFERED AND REJECTED.

Evidence offered and insisted on by plaintiff having been competent, it was proper for the court to consider it, as its findings show it did, though when offered it was rejected by the court, with a statement that plaintiff would be given a chance to offer it later, and no formal offer was thereafter made.

5. FACTORS (§ 38) — CONVERSION.

Plaintiff sold to F. 347 cases of eggs, and at the direction of F. shipped them consigned to defendant, a commission merchant, whom F. had engaged to sell them. In the same car plaintiff shipped 52 other cases of eggs; and attached to the bill of lading, accompanying the draft of $1,596.20 for the 347 cases drawn on F., a statement showing this fact, and that the 52 cases were consigned to defendant for sale on plaintiff's account. Defendant advanced to F. the amount of the draft, and caused the car to be turned over to B. to sell, and the bill of lading was turned over to B., who sold all the eggs, the 347 cases for $1,613.55, and the 52 cases for $210.60, and made a remittance on account thereof of $1,613.44 to defendant, who, after deducting therefrom the amount advanced to F., and $5 for expenses, gave F. a check for the balance in the sum of $12.24. Held, that defendant, having paid F. only the purchase price of the 347 cases, had in his hands the proceeds of the sale of the 52 cases, and that his retaining possession thereof was a conversion of plaintiff's property, for which he was liable.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by E. B. Webster, doing business under the name and style of Webster & Co., against A. W. Bear, doing business under the name and style of the Bear Commission Company. Judgment for plaintiff. Defendant appeals. Affirmed.

M. B. Aaron, for appellant. Dwight M. Smith and William H. England, for respondent.

BROADDUS, P. J.

The plaintiff Webster, doing business in the name of Webster & Co., instituted this suit in a justice's court to recover of defendant, A. W. Bear, doing business under the name of Bear Commission Company, the sum of $174.18, the value of 52 cases of eggs.

The facts are: That on May 1, 1907, the Ft. Scott Produce Company at Kansas City, Mo., by telegram inquired of plaintiff, who was doing business at Narka, Kan., at what price he would sell them a car load of storage-packed eggs. Plaintiff telegraphed answer that he would take $4.60 per case for such eggs. The Ft. Scott Company then telegraphed to plaintiff its offer to take the eggs at the price named, to which he replied by wire, accepting the offer for shipment before May the 10th. A car of eggs contains 400 cases. The Ft. Scott Company then wired plaintiff to notify it when he would be ready to ship so the company could give him the routing and manner of billing the car "and to draw ninety per cent." Plaintiff then notified the Ft. Scott Company that the car would be shipped on May 9th, whereupon said company instructed plaintiff to route and bill the car to defendant at Chicago. On receiving the telegram of plaintiff accepting the offer of the Ft. Scott Company for a car of storage-packed eggs, the agent of the company called on defendant, and asked him if he would handle the car of eggs for said company. The defendant agreed to do so in the usual and customary manner of commission merchants, and, as the Chicago market for eggs was stronger than the Kansas City market, the defendant requested that the car be routed to Chicago, and, as the custom was among commission merchants who handle goods for others, defendant agreed with the company to advance to it about 90 per cent. on the car. The Ft. Scott Company wired plaintiff to bill the car to defendant at Chicago, and to draw on it for 90 per cent. On May 9th plaintiff shipped a car load containing 399 cases and billed it to defendant at Chicago, and at the same time drew a sight draft through the National Bank of Commerce of Kansas City, Mo., on the Ft. Scott Company for $1,596.20. On May 10th the draft was presented for payment to the Ft. Scott Company, at which time Mr. Boterf, who was said company's agent, notified defendant that the bill of lading showing a car load of 399 cases and a draft for $1,596.20, were at said bank, and asked defendant for a check in the amount of said draft. Defendant upon ascertaining that the draft did not exceed 90 per cent. of the contract price of the eggs issued his check for the amount. Boterf then paid the draft, which was drawn upon his company, and delivered the bill of lading to defendant. In the meantime the car was on its way to Chicago, where defendant also did business; he at the time supposing the car to contain 399 cases of storage-packed eggs. On May 14th Boterf informed defendant that he had learned that there were 52 cases of eggs, known as "seconds." Upon receiving this information, defendant informed Boterf that he did not care to handle a mixed car of eggs in Chicago, and suggested that Mr. Boterf have the car turned over to some Chicago firm to handle. Accordingly, the car was turned over to S. S. Borden & Co. of Chicago. The bill of lading was then forwarded to S. S. Borden, who on May 18th sold the car and remitted $1,613.44 of the proceeds with account of sales. The remittance was received by defendant, who after deducting therefrom the sum of $1,596.20, the amount originally advanced to the Ft. Scott Company, and $5 for expenses, gave to the Ft. Scott...