Frazier v. Atchison, Topeka & Santa Fe Railway Co. , 1904 Mo. App. LEXIS 490 ( 1904 )

REYBURN, J.

Plaintiff, a saloonkeeper, at Baring, Missouri, in November, 1901, through Yocum, local agent of defendant, verbally ordered a carload of cóál "to be shipped from Marceline, Missouri, by Lambeth' & Sons. The coal was shipped at Baring and-a hill of lading issued, naming Lambeth & Sons as consignors and plaintiff as consignee. The consignee was unhnown to the shippers, and prior to the shipment defendant’s agent agreed that defendant should become responsible to consignors for the coal, if not paid for by Frazier in a reasonable time. Upon arrival at its place of destination, the coal erroneously was placed upon the defendant’s chute, unloaded with its own coal, and subsequently paid for by-defendant. The bill of lading was never delivered to nor in possession of plaintiff, but was in possession of the agent of defendant and plaintiff never paid, nor did he tender payment, for the coal to consignors, nor to defendant, though his testimony tended to prove that-he was ready and willing to ma-lie payment of its purchase price, $2.15 per ton, on delivery or tender of the coal; he further stated in his examination in chief that the coal was worth at the time $2.75 per ton in Baring and which price he was offered for it. The railroad agent assured him he would order immediately another carload of coal and plaintiff seemed to have awaited in vain for compliance with this promise to replace the car but borrowed a ton of coál pending its arrival.

This an action by -plaintiff for conversion of the carload of coal, was tried before the court, which found for the plaintiff. —

It is a legal principle generally recognized, that when no express provision is made for time of payment, a sale of personalty is presumed by -law to be a cash transaction, and the delivery of the property and the payment of the purchase price are concurrent and the buyer is not entitled to demand, nor to receive delivery or possession of the goods, the subject of the contract, without proffer of the purchase price or its mutual payment. In the absence of other arrangement, express or implied, concerning the time.of payment of.the price and providing for future payment^ or where the parties remain entirely silent respecting it, the rule is clearly established, that the sale is made impliedly for cash, and title to the property sold does not pass to the vendee until payment or tender of payment has been made. The payment of the purchase price becomes a condition precedent by legal implication, and except in the event of waiver by the vendor, title does not vest in the buyer until after performance of such condition. Those principles are upheld and asserted by an unbroken line of decisions of the appellate courts of this State, as well as by the treatises of the most eminent writers upon the subject. Tiedeman, Sales, sec. 93; 1 Benjamin, Sales (4 Ed.), 318, 345; Southwestern, etc. Co. v. Plant, 45 Mo. 517; Southwestern, etc. Co. v. Stanard, 44 Mo. 71; Hall et al. v. Railroad, 50 Mo. App. 179; Stresovich v. Kesting, 63 Mo. 57. Logically it would have followed in such event, that plaintiff, having neither the right of property in, nor the right of possession to the coal, was precluded from maintaining trover or conversion therefor; for, unless he had the legal title or the right to the possession of the coal at, the time it was alleged to have been converted, he was not entitled to recover. Johnson, etc. v. Bank, 116 Mo. 558; Parker v. Rhodes, 79 Mo. 88; Myers v. Hale, 17 Mo. App. 204. Nor would the issuance of the bill of lading in plaintiff’s name as consignee have convéyed to him conclusively title or right of possession to the coal; for a bill of lading is but prima facie evidence of the intent of the vendor to part with the title or interest in the property, for which it is issued, and extraneous evidence is admissible for the purposes of showing the true intent of the parties. Scharff v. Meyer, 133 Mo. loe. cit. 445. But the testimony of Joseph Lambeth established that he relied on the promise of the agent of appellant, that if the consignors did not receive payment from respondent in a reasonable time, to notify him and he would see that they got their money. This evidence, if not decisively negativing the contentions of appellant that the sale was made for cash, or that the consignors did not intend to have the coal delivered to Frazier until payment had been made, and that the bill of lading, in lieu-of delivery to him, was sent to the agent of appellant in furtherance of the purpose that the coal should be withheld from Frazier until after he had made payment, at (least, is evidence, from which it may be fairly inferred that the sale was not for cash on delivery, but to be paid for within a reasonable time thereafter; and the finding of the trial court on such issue will not be disturbed.

2. The answer was a general denial, and, therefore, defendant in this action was barred from recouping the price of the coal, which it seems to have paid consignors after this action was begun, and for the same •reason no allowance for freight can be made, nor is any question of subrogation of defendant to rights of the consignor ensuing from such payment, before us. The judgment of the court for plaintiff in the sum of $63.25 finds abundant support in the testimony from which it is established beyond dispute, that defendant appropriated to its own use the carload of coal ordered by and belonging to plaintiff. Although this action of defendant may have occurred through an honest mistake of its agents regarding the ownership of the particular carload, yet plaintiff was none the less entitled to redress.

The judgment is for the right party and is affirmed.-

Bland, P. J., and Goode, J., concur.