Nathan v. Missouri Pacific Railway Co. , 135 Mo. App. 46 ( 1909 )

ELLISON, J.

This action is to recover tbe value of a box of merchandise alleged to bave been shipped by plaintiff from Warrensburg, Mo., to Weil, Pflaurn & Co., Chicago, Ill., and lost or destroyed by defendant. Tbe judgment in tbe trial court was for tbe plaintiff.

It would perhaps be going too far to say tbe evidence was sufficient to show that plaintiff ever shipped tbe box. It was shown that it was sent to defendant’s depot on Friday, by a drayman, who took along a written paper from plaintiff with directions where and to whom it was consigned. This writing was illegible and defendant’s agent told tbe drayman to take it back, with tbe statement that it • could not be read. Tbe drayman did so. On the following Monday one of plaintiffs went to the depot when, as be testified, another of defendant’s agents informed him that be bad shipped tbe box. The agent, however, testified that be did not ship it; that it could not be found. No receipt or bill of lading was given to plaintiff. It was shown that the box bad a mark of tbe Chicago address upon it, but it is hardly to be supposed that tbe agent would ship to such address when written directions had been sent which be could not decipher and bad returned.

But whatever may be said of tbe foregoing, it is clear that tbe evidence in plaintiff’s behalf shows be was not tbe owner of tbe property. He testified that be bad bought goods of Weil, Pflaurn & Co., but these were not what be purchased. He refused to accept them and tbe shipment be was undertaking to make was to return them. He stated in terms that at that time the goods were not his, but Avere the property of Weil, Pflaurn & Co.

It is probable that this statement was thought to be qualified, or made of no consequence, by the further statement, made ñirther on, that he afterwards paid for them. But this, if it could affect the other in any circumstances, could be of no avail here for the reason that Avhat he called an after-payment Avas merely that unless Weil, Pflaurn & Co. received the goods at Chicago, they would not allow credit for them in the monthly accounts between the parties, these plaintiff’s making payments monthly on a general account.

There is, however, no need of a discussion of the case further. When plaintiff refused to accept the goods and reshipped them back to his vendor as he alleges he did and upon which shipment his action is founded, they were the property of the latter (State v. Rosenberger, 212 Mo. 648, 111 S. W. 510; Krulder v. Ellison, 47 N. Y. 37; Thompson v. Fargo, 63 N. Y. 479) and plaintiff cannot recover. The judgment should have been for defendant. It will therefore be reversed and the cause remanded so that it may be so entered by the trial court.

All concur.