Wilson v. Adams Express Co. , 43 Mo. App. 659 ( 1891 )

Smith, P. J.

This case was here on a former occasion. A full and complete statement of it will be found by reference to 27 Mo. App. 360. The pleadings and evidence, in the present case, it is conceded, are the same as they were in that. The plaintiff had judgment, and the defendant has appealed.

The only matter presented by the present appeal for our decision arises in respect to the action of the circuit court in giving and refusing instructions. In the opinion, delivered by Judge Ellison, in disposing of the case when- here before, it is stated, “that the only liability that can exist in this case -would be such as would arise from the negligence of defendant in the delivery — that is, if defendant was aware of the fraud practiced on plaintiff, and failed to thwart it by holding the goods, or if proper care in the delivery on defendant’s part would have led to a discovery of the fraud, a liability would attach.” “As to whether such care was used under all'the circumstances, is a question of fact.” The instruction given for the plaintiff at the second trial, which declared that, “If the court shall find from the evidence that the defendant in delivering the goods in question failed to exercise ordinary and proper care in their delivery, whereby the same were lost to the plaintiff, then the plaintiff is entitled to recover;” and' the fourth instruction given for the defendant declaring that, “ If the goods were consigned to P. H. Davis, La Cygne, Kansas, and there was a responsible merchant at that town of that name, -and another person claiming to be P. H. Davis demanded, the goods as being consigned to him, and the defendant inquired of the responsible merchant if the goods belonged to him, and he replied that they did not; and if, after reasonable investigation, defendant delivered the goods to the person representing himself as P. H. Davis, it is not liable, provided it delivered the goods in good faith and under the belief that he was the person to whom they were consigned,” fully presented the law of the case as it was outlined in the opinion just referred to. The question of negligence of the defendant in the delivery of the goods was fail*ly submitted to the court upon the evidence, under these instructions. The case was determined in accordance with .the views so plainly, explicitly, expressed by the court. The trial court having be'en intrusted with the determination of both law and fact m the case, its finding is incontrovertible here.

Instructions, numbered 1, 2, 3, were properly-refused for the reason that they ignore the question of defendant’s negligence.

The defendant’s fifth instruction was properly refused. If the plaintiff did not discover the fraud perpetrated by the swindler upon him, before the delivery of the goods by the defendant, of which there is no evidence, it would have been impossible for him to have exercised his right of stoppage in transitu. It is not apprehended that the plaintiff’s right of recovery is dependent upon any such unreasonable condition. The responsible F. IT. Davis liad not purchased the goods of plaintiff, and claimed no title thereto. He was not concerned legally as to what became of plaintiff’s goods.

There is not that entire lack of evidence to support the finding of the court, which would justify us in concluding that it erred in refusing to declare, as a matter of law, that plaintiff was not entitled to recover.

The case seems to have been submitted under instructions fairly covering the issues, and we can discover no error prejudicial to the defendant, and we shall, therefore, affirm the judgment.

Judge Ellison concurs ; Judge GfiLL not sitting.