Wolfe v. Missouri Pac. Ry. Co.

• Decision Date: 04 March 1889
• Citation: 97 Mo. 473,11 S.W. 49
• Parties: WOLFE et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

11 S.W. 49

97 Mo. 473

WOLFE et al. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 4, 1889.

TRUSTEE — ACTION — CARRIERS OF GOODS — DELIVERY — EVIDENCE.

1. Where an agent to whom goods are consigned by his principal, and who has no pecuniary interest in them beyond his lien for commissions, contracts with a common carrier for their delivery, he may sue the carrier in his own name for their wrongful delivery, under Rev. St. Mo. § 3463, providing that a trustee of an express trust may sue in his own name without joining the person for whose benefit the action is prosecuted, and declaring that a person in whose name a contract is made for the benefit of another is such a trustee.

2. A shipper billed certain goods to his local agent, and not to the purchaser, and the agent, without transferring the bill of lading, made a further contract with defendant for the carriage of the goods to the place where they were to be delivered to the purchaser; the agent directing that such goods should be delivered only to his order. Held that, the evidence being sufficient to support a finding that the shipper had not parted with the right to the possession of the goods, a delivery of them to the purchaser was at the risk of the defendant.

3. A witness may testify to a conversation had by him with a person through a telephone, though the witness was not able to identify the voice of the person speaking with him.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

T. J. Partis, Bennet Pike, and Henry G. Herbel, for appellant. Taylor & Pollard, for respondents.

BARCLAY, J.

Plaintiffs brought this action to recover damages for breach of a contract for the carriage and delivery of seven car-loads of wire. No questions arise requiring any special reference to the pleadings. They properly present the issues made by the facts hereafter discussed. The cause was tried by Hon. AMOS M. THAYER as circuit judge, a jury having been waived.

It appeared at the trial that Henry Fuchs, a barb-wire manufacturer in St. Louis, in April, 1884, made a written contract with the Cambria Iron Company of Johnstown, Pa., by which the iron company was to furnish said Fuchs with "12 tons of wire per day for 25 business days, beginning April 30th, and then 18 tons per day for 25 business days," at certain named prices. Settlements were to be monthly, "less 2 per cent. discount for payment in 10 days from date of shipment;" and "the seller's responsibility for goods in transit should cease when they pass into the custody of the transporting company." The iron company, in pursuance of this agreement, shipped 10 car-loads of wire for said Fuchs, but consigned the same to Wolfe & Good, (the plaintiffs,) their St. Louis agents, at East St. Louis. On the arrival of the wire at East St. Louis it was delivered to the St. Louis Bridge & Tunnel R. R. Company, by the Ohio & Mississippi Railway, (the terminal carrier,) in obedience to Wolfe & Good's instructions, and was by the bridge and tunnel company then delivered to defendant for transfer and delivery at Pope's switch, Fourteenth and Gratiot streets, in St. Louis. No bill of lading was issued to Wolfe & Goode, or to any other person, by either the bridge and tunnel company or the defendant, for the hauling of this wire from East St. Louis to St. Louis. There was a custom prevalent with roads terminating at East St. Louis and St. Louis to designate the destination of cars thus transferred across the river, by tacking a card of a particular color on the car-door, which indicated to the receiving carrier the particular depot, switch, or side track on which the car was to be placed; different colored cards representing the several depots, switches, and side tracks. The cars containing this wire were designated by blue cards, which indicated Pope's switch as their destination. That was a private switch used by the Pope Iron and Metal Company, and two or three other establishments, among them Fuchs' Wire-Works. The wire was shipped in three or four car-load lots. Three car-loads were received by defendant, and delivered to Fuchs on written orders of Wolfe & Good. Prepayment of the purchase price of these three car-loads was not exacted of Fuchs by Wolfe & Good. The remaining seven cars were delivered by defendant to Fuchs, on his demand, at different dates, in May, 1884. That delivery constitutes the gist of this action. Whether it was made with the consent of plaintiffs, Wolfe & Good, or without it, was the main issue of fact tried. The evidence conflicted on that point. The trial court found that the delivery was without their consent.

It further appeared in evidence that plaintiffs, as agents for the Cambria Iron Company, had no other pecuniary interest in the wire than for the payment of their commissions; and that immediately upon receipt of advices from the Cambria Iron Company of the shipment in controversy, Wolfe & Good had sent to Fuchs invoices or bills of account for the car-loads in question, which he received several days before the wire arrived. In the progress of the trial the court admitted testimony of alleged conversations by telephone connected with plaintiff's office, though the witness did not identify the voice he heard at their instrument. The court made the following declarations of law against defendant's objections, viz.: "The court decides the law to be that a person in whose name a contract is made for the benefit of another is a trustee of an express trust, and as such can maintain an action in his own name. If, therefore, the court finds from the evidence that the contract of the defendant to carry the goods in question from the place where it received the same to Fourteenth and Gratiot streets was made in the name of plaintiffs, though for the benefit of the Cambria Iron Co., then the plaintiffs would have a standing in court, and could recover if the delivery to Fuchs was wrongful. The court further declares the law to be that if it finds from the evidence that on the arrival of the goods in question at East St. Louis the plaintiffs received said goods in pursuance of the bills of lading read in evidence; that thereafter plaintiffs ordered the St. Louis Bridge & Tunnel R. R. Co. to have said goods delivered to Fourteenth and Gratiot streets; that the delivery of said goods included the hauling of said goods from the eastern terminus of defendant's railroad to said Fourteenth and Gratiot streets; that said defendant received said goods of said St. Louis Bridge and Tunnel R. R. Co., and, in delivering said goods, defendant acted in law...