Kemper Mill & Elevator Co. v. Hines , 293 Mo. 88 ( 1922 )

Suit for conversion of two cars of corn meal shipped by plaintiff over the St. L. San Francisco and connecting carriers to East Joliet, Illinois — one car being shipped from Republic, Missouri, and the other from Aurora, Missouri. The bills of lading were issued to plaintiff by said Railroad Company, while in charge of the Director General of Railroads, and were dated, respectively, April 12, 1918, and April 16, 1918. They were shippers' order bills, "Notify Jonas F. Eby Son." Plaintiff drew two sight drafts on Eby Son at Lancaster, Pennsylvania, and, attaching one of the bills of lading to each draft, forwarded same for collection through its bank at Kansas City, with instructions to deliver the bills of lading to Eby Son upon payment of the drafts. The drafts being dishonored by Eby Son were with the bills of lading returned to the plaintiff. The bills of lading were never in the possession or ownership of Eby Son. In the meantime, both of the cars had been re-consigned by the terminal carrier at Joliet at the request of Eby Son, one to Philadelphia, Pennsylvania, and one to Lowell, Massachusetts. The terminal company required Eby Son to give it an indemnifying bond, in accordance with its custom in such cases. No new bills of lading were issued, but the railroad billing was simply changed by the terminal company by inserting therein the new destination of the cars.

On arrival at Philadelphia and Lowell the meal was found to be spoiled and unmerchantable and was rejected by Eby Son.

Plaintiff's evidence tended to show that on July 3, 1918, when it ascertained the consignments had been so re-shipped and rejected, it demanded payment for the meal from the defendant, claiming that the terminal carrier at Joliet had no authority to deliver the meal or re-consign it at the request of Eby Son, they not being the owners, nor having the bills of lading, nor any authority from the plaintiff for so receiving or re-consigning the meal, and that the meal was therefore converted by said terminal carrier, and defendant, as the initial carrier, was liable for its value to the plaintiff. Each bill of lading was in the standard Interstate Commerce Commission form, and provided that the meal, "consigned and destined as indicated below, which said carrier agrees to carry to its usual place of delivery at said destination, if on its road, otherwise, to deliver to another carrier on the route to said destination." Each bill of lading also contained the following provision: "The surrender of the original order bill of lading properly indorsed shall be required before delivery of the property. Inspection of property covered by the bill of lading will not be permitted unless provided by law, or unless permission is indorsed on the original bill of lading or given in writing by the shipper." Each bill also contained the following: "Consigned to order of Kemper Mill Elevator Company, Destination, E. Joliet, Ill. Notify Jonas F. Eby Son, at E. Joliet, Ill. Route via C.P. St. L. and via E.J.E."

The defense pleaded in the answer was that plaintiff, at the time of the billing of said corn meal, had a contract with Jonas F. Eby Son for the sale of a large quantity of meal and billed the same to East Joliet, Ill., to its own order, with directions to notify Jonas F. Eby Son; that defendant notified Jonas F. Eby Son as directed and said Eby Son refused to accept the same at East Joliet, Ill. That thereafter plaintiff authorized and directed said Eby Son to have one car forwarded to Philadelphia, Pennsylvania, and another to Lowell, Massachusetts, and same was so forwarded; and on its arrival, it was inspected and rejected as unmerchantable, and plaintiff notified thereof. "And defendant denies and says that it is not true that he converted the same."

The reply traversed the new matter in the answer.

At the trial plaintiff's evidence tended to support the allegations of the petition, and that it had never authorized or directed Eby Son or anyone to have said cars forwarded to Philadelphia or Lowell, or their original destination changed.

Defendant, on its part, offered testimony tending to prove, First: That after the bills of lading were issued, the plaintiff orally authorized the said Eby Son to instruct the carrier to re-consign or divert the shipments, respectively, from Joliet, Illinois, to Lowell, Massachusetts, and Philadelphia, Pennsylvania, as was done. Second: That the two cars in question were part of an order of 10,000 sacks of corn meal ordered by Eby Son from plaintiff, originally required to be shipped to Joliet, Illinois, but subsequently changed, by oral agreement of parties before any shipment was made, so as to authorize Eby Son to order the carrier to re-consign or divert all of said shipments, consisting of twelve or fifteen cars, from Joliet, to various eastern points, and there to be disposed of by plaintiff, or by Eby Son, as agents for the account of plaintiff, and that all of the other cars were so diverted under such changed agreement and disposed of by plaintiff or for plaintiff by said Eby Son, prior to July 3, 1918, when plaintiff first notified defendant that it had not authorized the cars in suit to be diverted or forwarded to Philadelphia or Lowell, and that plaintiff would hold the defendant liable as for a conversion of the same. Third: That it was the custom for all shipments made to Joliet, which was not a market for corn meal, but a convenient railroad center from which to reach other points or markets, under bills of lading to shippers' order, notifying certain parties, for the shipments to be diverted to other points by the carrier at the request of the notify parties, without surrendering or having the bills of lading in their possession or having any special authority from the shippers authorizing such re-consignment or diversion.

On objection of plaintiff, all of above testimony offered by defendant was excluded by the court.

The bills of lading provided that: "The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including freight charges if paid." Both parties tried the case on the theory that the measure of damages was the value of the meal at the time and place of conversion, and defendant assigns error as to certain testimony admitted for plaintiff as to the value of the meal, but which we need not notice in the view we take of the time and place of determining such value.

Defendant also complains of the court's refusal of its demurrer to plaintiff's evidence, and of certain instructions asked by it, and of the giving of certain instructions for the plaintiff, but the decision of this court on the action of the lower court in excluding the evidence aforesaid offered by defendant, and on other points herein, will also determine the propriety of such instructions and they need not be specifically set out or further referred to.

The verdict was for the plaintiff for $9,091, or $433.50 more than was claimed in the ad damnum clause in the petition.

The court overruling defendant's motion for new trial, it duly appealed to this court.

I. The shipments in question being interstate shipments, it is not denied that the defendant, as the initial carrier, was liable for the acts of the terminal carrier at East JolietLiability under the Federal Uniform Bills of Lading Act.of Initial [Railroad v. Blish Milling Company, 241 U.S. 190.]Carrier.

II. We think, too, that the act of said terminal carrier, at the request of Eby Son, in re-consigning the corn meal from Joliet to eastern points by changing the way bills, although it did not issue any new bills of lading, was a delivery of the meal to Eby SonConversion. (Pere Marquette Railroad Co. v. French Co., 41 Supreme Court Reporter, 195); and unless such delivery was authorized by plaintiff, the defendant is liable as for a conversion of said meal without any subsequent demand therefor. But if such delivery was authorized by plaintiff, the defendant is not liable herein. [Railroad v. Blish Milling Co.,241 U.S. 190; Marshall Co. v. Railroad, 176 Mo. 480; Pere Marquette Railroad Co. v. French Co., 41 Supreme Court Reporter, 195.]

In the case last cited the person to whom the goods were delivered had procured the bill of lading illegally and did not surrender it to the carrier, but he had it, duly indorsed, in his possession, and it was upon the ground that he had it in his possession that the court justified the carrier in delivering the goods to him. But in disposing of the case the court announced the law as follows, at page 198:

"There is nothing in the act which imposes upon the carrier a specific duty to the shipper to take up the bill of lading. Under Section 8 the carrier is not obliged to make delivery except upon production and surrender of the bills of lading; but it is not prohibited from so doing. If instead of insisting upon the production and surrender of the bill it chooses to deliver in reliance upon the assurance that the deliveree has it, so far as the duty to the shipper is concerned, the only risk it runs isthat the person who says he has the bill may not have it. If suchproves to be the case, the carrier is liable for conversion andmust, of course, indemnify the shipper for any loss whichresults. Such liability arises, not from the statute, but from the obligation which the carrier assumes under the bill of lading. . . .

"Although there is a conflict of language in the cases in which a shipper sues a carrier for delivery of the goods without requiring a surrender of the bill of lading, there appears to be no conflict of principle or in decision. Where the failure to require the presentation and surrender of the bill is the cause of the shipper losing his goods, a delivery without requiring it constitutes a conversion. [Babbitt v. Grand Trunk Railroad, 285 Ill. 267, 120 N.E. 803; Turnbull v. Michigan Central, 183 Mich. 213, 150 N.W. 132; Judson v. Minn. St. Louis Railroad Co., 131 Minn. 5, 154 N.W. 506; First National Bank v. Oregon-Washington Railroad Company, 25 Idaho, 58, 136 P. 798; Railroad v. Blish Milling Co., 241 U.S. 190, 36 Sup. Ct. 541, 60 Law Ed. 948.] But where delivery is made to a person who has thebill or who has authority from the holder of it, and the cause of the shipper's loss is not the failure to require surrender of the bill, but the improper acquisition of it by the deliveree or his improper subsequent conduct, the mere technical failure to require presentation and surrender of the bill will not make the delivery a conversion. [Chicago Packing Co. v. S.F. W. Railroad Company, 103 Ga. 140, 29 S.E. 698, 40 L.R.A. 367; Famous Mfg. Co. v. C. N. Railroad Company, 166 Iowa 361, 147 N.W. 754; Nelson Grain Co. v. Railroad Company, 174 Mich. 80, 140 N.W. 486; St. Louis, Southwestern Railroad v. Gilbreath, 144 S.W. 1051.]" (Italics ours.)

III. As we have seen, the above case of Pere Marquette Railroad Co. v. French Co., 41 S.C. Rep. 195, holds that the railroad company may deliver the goods to the holder of a shipper's order bill of lading (even though not the lawful holder),Surrender of without the presentation or surrender of the bill.Way Bill. In the case before us, the plaintiff or consignor remained the lawful holder of the bills at the time of the delivery to or re-consignment by Eby Son. The goods could therefore have been delivered to plaintiff at that time, without the surrender of the bills of lading.

IV. The provisions of the act of Congress aforesaid (U.S.R.S. 1918, Compact Ed., sec. 8604-e) authorize the carrier to make delivery to "(a) A person lawfullyDelivery entitled to the possession of the goods" or "(c) Aby Agent. person in possession of an order bill for the goods, by the terms of which the goods are deliverable to his order."

It will hardly be contended that what the consignor could himself do he could not do by his authorized agent. Qui facitper alium facit per se. Consequently, where the goods are deliverable by the bill to the order of the consignor as in this case, the consignor could authorize his agent to receive the goods for him, without surrendering the bill, as long as he is the holder of the bill, and the delivery would be a legal delivery as between him and the carrier, no rights of third party intervening. [Pere Marquette Railroad Co. v. French Co., supra.]

V. But in such case, would the consignor's authority to his agent to receive the delivery of the goods be required to be in writing, as in effect contended by respondent's learned counsel and ruled by the court below? We think not. We knowParol of nothing in the Act of Congress or other statutesAuthority. so requiring. The fact that the bill of lading itself is required to be in writing does not require the authority of the agent receiving the property thereunder to be in writing. Where a contract to sell land is required by the statute to be made in writing and signed by the parties or their duly authorized agents, the agent's authority need not be in writing, unless expressly so required by the statute. [Beheret v. Myers, 240 Mo. l.c. 84; Johnson v. Fecht, 185 Mo. l.c. 342; Riley v. Minor, 29 Mo. 439; Johnson v. McGruder, 15 Mo. 365; Tracy v. Berridge, 180 Mo. App. 225.]

VI. Furthermore, after a contract is completely executed by one party the other cannot invoke the Statute of Frauds. [Winters v. Cherry, 78 Mo. 344; Self v. Cordell, 45 Mo. 345;Statute Tuggles v. Callison, 143 Mo. 527; McGinnis v.of Frauds. McGinnis, 274 Mo. 297; Maupin v. Railroad, 171 Mo. 187; Blair v. Jenkins, 129 Mo. 647; Bank v. Read, 131 Mo. 553; Missouri Illinois Coal Co. v. Willis Coal Mining Co., 235 Mo. 119.]

So that if the terminal company at Joliet surrendered possession of the corn meal to Eby Son under verbal authority given them by the plaintiff, the delivery having been completely executed, the Statute of Frauds could not be invoked by plaintiff, even if there was a provision of law requiring the authority of the agent to receive such delivery, to be in writing. We therefore hold that parol evidence, of the authority of Eby Son from the plaintiff as plaintiff's agent to order the terminal carrier at Joliet to forward said shipments to Lowell and Philadelphia, offered by defendant and excluded by the court, should have been admitted and the court erred in refusing it.

VII. But respondent's learned counsel strenuously argues that such testimony was made inadmissible by reason of the following provision of the Federal statute (Sec. 8604-g, U.S. Compiled Stats. 1918, 39 U.S. Stats. Large, 540): "Any alteration, addition or erasure in a bill after its issueAlteration. without authority from the carrier issuing the same, either in writing or noted on the bill, shall be void, whatever be the nature and purpose of the change, and the bill shall be enforceable according to its original tenor." Clearly this refers to some change in the wording of the bill by subsequent erasure or writing thereon, and has no application to parol agreements between the consignor and the parties to be notified, by which they are made agents of the consignor of a shipper's order bill to receive the goods from the carrier without the production or surrender of the bill.

VIII. (a) It is also true that the mere fact that Eby Son were required to be notified by the bills of lading themselves, in no way gives them any rights in or authority to receive the goods or makes themNotifying agents of the consignor for so doing. Under thePurchaser. language of the bills themselves, Eby Son had no interest in or authority over the goods whatever. [4 R.C.L. sec. 294, p. 842; Bank v. Railroad, 132 Mo. l.c. 500; 1 Michie on Carriers, p. 560, secs. 865 and 866.]

But the claim is here, not that Eby Son had any such authority by implication from the bill of lading itself, but that they were specially authorized by plaintiff to receive and re-consign the goods for and on account of the plaintiff as the agents of the plaintiff by the parol testimony under consideration.

(b) Said Act of Congress provides (Sec. 8604-d, U.S. Comp. Stats. 1918, Compact Ed. p. 1374): "The insertion in an order bill of the name of a person to be notified of the arrival of the goods shall not limit the negotiability of the bill or constitute notice to a purchaser thereof of any rights or equities of such person in the goods." But this statute obviously applies only to contests with the purchaser of the bill, and not to contests between the carrier and the shipper while the latter is still the holder and owner and in possession of the bill, as in this case.

(c) It is also true that under said Bills of Lading Act contracts for interstate shipments must be evidenced by a bill of lading, which necessarily implies that such contracts must be in writing. Hence, the provisions of such bills of lading cannot be varied by parol testimony. [U.S. Complied Stats. 1918, Compact Ed. sec. 8604-a; Thee v. Wabash Railroad, 217 S.W. 567; Vittuci Co. v. Canadian Pacific Railroad, 238 F. 1005; Inman Co. v. Seaboard Railroad, 159 F. 960; Vanderbilt v. Ocean S.S. Co., 215 F. 888; Bark Delaware v. Oregon Iron Co., 14 Wall. 579.]

But the parol testimony here in question in no way adds to or varies the terms of the bill of lading, because, by the terms of the bill under said Act of Congress, as we have seen, the plaintiff being the owner of the goods and being in possession of the bill of lading, had a right without surrendering the bill, to receive and forward the goods, as was done, by its duly authorized agents, whose authority, we have determined, need not be in writing, but may be shown by parol.

IX. It is also insisted by learned counsel for respondent that inasmuch as the two cars in question were moved from their point of origin, April 10th and April 16, 1918, respectively, they were transactions prior, in point of time, to theSame shipment of the other cars referred to in paragraphTransaction. second of our statement of the rejected testimony, and therefore the testimony that such other cars were forwarded to eastern points the same as the two cars in controversy, by Eby Son as plaintiff's agents with plaintiff's consent, was inadmissible, as relating to another transaction. But, according to the offered testimony, said two cars were part and parcel of the same order of 10,000 sacks of meal as said other cars referred to, and plaintiff did not complain of the conversion of the cars in question until July 3, 1918, which was after the other cars had been forwarded under orders from Eby Son for plaintiff to eastern points and disposed of by plaintiff itself or by Eby Son as its agent. We think, therefore, the testimony as to the handling of such other cars, prior to plaintiff's complaint of the conversion herein, was competent and should have been admitted as part of the same transaction as the two cars in question.

X. But we think the testimony embraced within the "Third" paragraph of the rejected evidence, namely, that it was the custom for all shipments made to Joliet, Illinois, under shipper's order bills of lading, that the "notify"Custom. parties mentioned in the bills as such had authority to authorize the carrier to divert the goods to other points without producing or having the bills of lading and without having special authority from the shippers, was properly rejected. Proof of such custom was not competent. [4 R.C.L. 25, sec. 27; Bank v. Railroad, 132 Mo. l.c. 500; Great Lakes Co. v. Transp. Company, 238 Fed. l.c. 481; Hirsch v. Georgia Iron Coal Co., 169 Fed. l.c. 581; 1 Michie on Carriers, p. 560, secs. 865 and 866.] Besides, defendant's witness, the traffic manager of the terminal railroad handling such shipments, testified that they were "handled on instructions from either the shipper or consignee" — thus denying they were handled by the "notify party" without special authority from the owner of the goods.

The testimony as to the custom of the "notify" parties to change the destination of the goods was therefore properly excluded.

XI. It was proper to permit the jury to allow the plaintiff in the discretion of the jury six per cent interest per annum on the value of the property from the time of the conversion. [Arkansas Valley Land Cattle Co. v. Mann, 130 U.S. 79; RivinusInterest. v. Langford, 75 F. 961; Sec. 4222, R.S. 1919; State ex rel. v. Hope, 121 Mo. 34; Goodman v. Railway,71 Mo. App. 460; Bank v. Railway, 192 Mo. App. 614.]

XII. Appellant also complains as to the admission of certain testimony concerning the value of the meal at the time of its alleged conversion at certain other places than Joliet, but we need not pass on such objection for the reason that theValue of bills of lading themselves provide that the measure ofGoods. damages is the value of the meal at the time and place of shipment and not of destination. This provision of the bill is valid and binding on the parties. [Georgia F. A. Ry. Co. v. Blish Milling Co., 241 U.S. 190; Brockman v. Railway, 195 Mo. App. l.c. 615.]

XIII. From what has been said it is clear there was a case for the jury and, therefore, defendant's demurrer to the evidence was properly refused. Other errors are complained of by appellant, including errors in giving and refusing instructions, and that the verdict was greater than the amount prayed for in the petition. But we need not consider such further alleged errors, as most, if not all, of them have been disposed of by the conclusions we have already announced, and upon a retrial it is not likely there will be any cause for complaint on account thereof.

The judgment is reversed and the cause remanded for retrial according to the views herein expressed. Ragland, C., concurs;Brown, C., not sitting.