Wilson Sewing Mach. Co. v. Louisville & Nashville R.R. Co.

• Decision Date: 31 October 1879
• Citation: 71 Mo. 203
• Parties: THE WILSON SEWING MACHINE COMPANY, Appellant, v. THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.
• Court: Missouri Supreme Court

71 Mo. 203

THE WILSON SEWING MACHINE COMPANY, Appellant,

v.THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

REVERSED.

J. H. Wieting and Geo. M. Stewart for appellant.

1. It was the duty of defendant to deliver the machines to the persons named in the bills of lading. Bristol v. R. R. Co., 9 Barb. 158; Jeffersonville R. R. Co. v. White, 6 Bush (Ky.) 251; Winslow v. R. R. Co., 42 Vt. 700; McEntee v. Steamboat Co., 45 N. Y. 37; Price v. R. R. Co., 50 N. Y. 213; Thorne v. Tilbury, 3 Hurls. & N. 534; Angle v. R. R. Co., 9 Iowa 488; s. c., 18 Iowa 555; Alderman v. Eastern R. R., 115 Mass. 233; 2 Redfield on Railways, (5 Ed.) p. 203.

2. Plaintiff's instructions numbers one and two were not calculated to mislead the jury, and are not inconsistent with the others given in the case. On the contrary, taken in connection with the others, they put the case properly before the jury. Henschen v. O'Bannon, 56 Mo. 289; Kitchen v. R. R. Co., 59 Mo. 514; Prewitt v. Martin, 59 Mo. 335; Budd v. Hoffheimer, 52 Mo. 303, Porter v. Harrison, 52 Mo. 527.

C. M. Stephens and Dryden & Dryden for respondent.

The first and second instructions given for plaintiff are so framed as necessarily to confuse and mislead the jury. All the facts supposed in them were admitted, and the instructions are peremptory that, if those facts exist, they shall find for the plaintiff. They carefully ignore the issue in the case and the evidence in support of it, viz.: That the delivery to Beach & Sutherland was with the assent of the plaintiff. Had the court told the jury in plain words that, upon the facts assumed, the law, in the absence of proof of a contrary agreement, would imply an agreement to deliver to the consignee, or to hold or store for him, it would have been well enough; and the jury would have understood that they were at liberty to consider and be governed by the evidence which tended to show the plaintiff's assent to the delivery to Beach & Sutherland, but they were not so told, and without such explanation the jury would not regard themselves as having any such liberty, and under this false and erroneous direction the jury most naturally reached a false verdict. In vain might we contend before the jury that the evidence proved the delivery to Beach & Sutherland was by the direction and with the consent of the plaintiff, and therefore a proper delivery. To refute us, it was only necessary to point to the second instruction, which showed that all such proof was unavailing. Nothing under that instruction would deliver the defendant, but a holding or a storing of the goods for the owner. The issue and the proof of it were not of the slightest consequence.

NAPTON, J.

The only question of importance in this case is the propriety of the instructions given by the court. As the principal objections to them were not so much on account of any defects in them, as abstract declarations of law, as their inapplicability to the facts proved, and the points in issue and their tendency to mislead and confuse the jury, it is necessary, in order to determine the force of such objections, to state the facts in evidence. In doing this, I will be understood as stating them as found by the jury, where there is any discrepancy in the testimony, though I must acknowledge that, after a careful examination of this evidence, which consists entirely of depositions and documents accompanying them, it requires considerable critical acumen to discover any material variances.

The action is one brought by the shipper of goods against the carrier for breach of contract of affreightment. There were five different consignments, of date June 1st, June 29th, July 25th, August 24th and October 6th, all in 1872, and there are five counts in the petition, but they are precisely alike, except as to dates and amounts. The first count charges that, on June 1st, 1872, the plaintiff delivered to defendant thirty-six boxes of sewing machines, worth $1,112, consigned to T. Kendall, Memphis, Tenn. that defendant failed to deliver the same; alleges the plaintiff's ownership, the defendant's conversion of the goods, &c., in the usual form. The defense set up in the answer is that, although the goods were consigned to T. Kendall, “it was intended by plaintiff, and well understood by both plaintiff and defendant, that, on the arrival of said goods at Memphis, the said Kendall not being there, (and not expecting to be,) to receive said goods, the goods were to be delivered to Beach & Sutherland, dealers in sewing machines of plaintiff's manufacture,” on whose order they were shipped, and to whom the defendant had previously delivered several packages, with consent of plaintiff, and that the goods in question were thus delivered in pursuance of this understanding. The answer further states that this last delivery was known to plaintiff, and assented to and ratified, and no objection made until one year after delivery, and after it was discovered that the price could not be collected of Beach & Sutherland. It is further alleged that Beach & Sutherland were plaintiff's agents at Memphis, and as such, authorized to receive the consignments.

The facts, as sought to be proved by plaintiff, and as I presume the jury found them to be, were, in substance, these: The plaintiff was a corporation having a large manufactory of sewing machines in Cleveland. Beach & Sutherland were dealers in these machines in Memphis. In 1870 they had a contract, in writing, by which the sewing machine company were to furnish them, from time to time, with sewing machines, at a certain price below that at retail, in consideration that the firm of Beach & Sutherland would devote themselves exclusively to the selling of such machines, and would take a certain number each year. Beach & Sutherland were to pay cash for all machines ordered, until a certain mortgage was given. As the mortgage was not given, the machines were always consigned to some third party, and the bills of lading were taken in the name of the consignees. To these bills of lading were attached drafts on Beach & Sutherland, and these bills of lading and drafts were sent to a bank in Memphis, with directions that the bills of lading were not to be delivered to Beach & Sutherland until the drafts were paid. In regard to the shipments from June 1st to October 6th, 1872, the subject matter of this action, the consignments were to different employees of the plaintiff at Cleveland, and the boxes were marked with the name of the consignee, and, according to the testimony of plaintiff's witnesses, marked on the outside of each box, in large letters, from a stencil plate, with this direction: “To be delivered to the consignee only, or his order.” The freight agent of defendant, however, stated that, if there was such direction, he did not observe it, and thought he would have observed it had it been on the boxes. However this may have been, the bills of lading were made out, as before stated, in the name of the consignee, and these bills, with an order on the freight agent at Memphis, signed by the consignee, directing him to deliver the goods, on their paying freight, to Beach & Sutherland, and the drafts of plaintiff on Beach & Sutherland for the price, payable on or before four months after date, and an itemized bill of the goods made out in the name of Beach & Sutherland, and marked paid, and a transcript from plaintiff's order book, showing particulars of the shipment, were all tacked together and deposited in the First National Bank in Cleveland. This bank immediately sent all these papers to a bank in Memphis, with a letter of instruction not to deliver to Beach & Sutherland any of these papers until they paid the drafts or secured them. These five shipments all reached Memphis, and were delivered immediately to Beach & Sutherland, and freight bills made out in the name of consignee. It appeared that, usually, it took from ten to twelve days for freight to go from Cleveland to Memphis, and of course Beach & Sutherland would be apprised by mail of the intended shipments in time to make arrangements with the bank to procure the necessary papers for their delivery to them. There was a good deal of testimony as to the limit of the credit which plaintiff was to extend to Beach & Sutherland, but, as it has no connection whatever with the present controversy, it is unnecessary to recite it. There was no evidence of any communication between plaintiff and defendant on the subject until, in November, 1872, the plaintiff first discovered that none of these five consignments had been paid for or the drafts secured, and yet they had all been delivered to Beach & Sutherland. An employee or agent was then sent to Memphis to inquire into the matter, and some proposals were made to the defendant, which were not agreed to. These are all the facts material to a consideration of the instructions, and their applicability to the case.

I must, however, not omit the exclusion by the court of a portion of Mr. Beach's deposition, at the instance of plaintiff, which is thus stated in the printed abstract: “ Question: State if you used any means of advertising your business?” “ Answer: I advertised mostly during 1871 and 1872, in the weekly papers of country towns in Tennessee, Mississippi and Arkansas. Frequently copies of these papers were mailed to plaintiff. It was two years ago, and the papers named were destroyed. These advertisements described the merits of the machines, and that Beach & Sutherland were the general agents of the Wilson Sewing Machine Company at Memphis. They never objected to this, and I don't know why they should.” This question and answer were excluded on objection of plaintiff to the same, as incompetent and irrelevant, and defendant duly excepted to the ruling of the court.

It appeared further, that the defendant had been in the habit, for a year or more previous to these five...