Rolla Produce Co. v. Am. Ry. Exp. Co. , 205 Mo. App. 646 ( 1920 )

By this suit plaintiff seeks to recover one thousand dollars damages for that defendant, a common carrier, delivered to the consignee a C.O.D. shipment of eggs without collecting that amount from the consignee as required by the terms of the shipping contract. The plaintiff was doing business at Rolla, Missouri, and there delivered to defendant fifty-seven cases of eggs to be transported and delivered to John B. Tyler Company at Chicago under a contract requiring defendant to collect for plaintiff one thousand dollars on delivery of such eggs. The defendant admits receiving the eggs under the C.O.D. contract mentioned; that it transported the eggs as required and delivered same to the consignee without collecting the specified amount. Its only defense is that while it failed to collect from the consignee the sum of one thousand dollars as it should have done, yet the consignee made payment in full for such eggs direct to plaintiff and plaintiff accepted such payment — hence no damage was suffered by plaintiff.

The plaintiff denied such payment and at the trial sought to show that the money paid by the consignee, Tyler Company, which defendant claims it paid plaintiff for the eggs in question, was in truth and in fact due and owing by Tyler Company to plaintiff on prior transactions and was merely a payment on an open account on which was due more than the amount in controversy. The evidence disclosed, however, that the only prior indebtedness claimed by plaintiff as due it from Tyler Company was an unliquidated and disputed claim for damages for that Tyler Company substituted inferior eggs for eggs which that company was handling in cold storage for plaintiff. While plaintiff and Tyler Company had been doing business with each other for a long time and many shipments of butter and eggs had been made by plaintiff to Tyler Company on commission or outright sale, yet all such transactions which had formed the book account of either party had been settled and paid before the shipment of the eggs now in controversy. The prior indebtedness, if any, of Tyler Company to plaintiff was for unliquidated damages growing out of tort rather than contract and never appeared in the book account which showed the merchandise sold or consigned by plaintiff to Tyler Company and payments made thereon.

The case was tried by a referee whose finding for the defendant was approved by the trial court and the first point raised by plaintiff's appeal is that the court erred in making a compulsory reference of the case over plaintiff's objections. It is very doubtful if this case was a proper one for compulsory reference (Elks Investment Co. v. Jones, 187 S.W. 71), but if the judgment is for the right party and is the only judgment permissible under the facts, then such error is harmless. Had the case been tried by a jury and the court at the close of the evidence had rightfully directed a verdict for defendant the result would be the same and plaintiff is not harmed by the method of trial.

A careful consideration of the case convinces us that the evidence, largely documentary and practically undisputed, shows that plaintiff received and accepted payment for the eggs in question direct from Tyler Company, the consignee. We need not discuss at length the nature of the liability incurred by a carrier who delivers goods to the consignee without collecting the amount specified in the C.O.D. contract. Even if such carrier can be sued in conversion as some authorities hold the obligation arises from contract and the amount of recovery is the contract amount and not the value of the property. [Fowler Com. Co. v. Railroad, 98 Mo. App. 210, 71 S.W. 1077; 2 Hutchinson on Carriers (3 Ed.), sec. 728.] The carrier becomes the collecting agent of the shipper and guarantees such collection in case the goods are delivered. If the goods are actually paid for by the consignee direct to the consignor instead of being paid through the carrier as agent, the result is the same and obviously there is no liability of the carrier. [1 Hutchinson on Carriers (3 Ed.), sec. 183; Witt v. Railroad, (Tenn.) 41 S.W. 1064; Rathbun v. Steamboat Co., 76 N.Y. 376.] Such payment by Tyler Company was not a voluntary payment of a third party's obligation but was a payment of their own debt to plaintiff since, having received these eggs from plaintiff, the law would clearly compel payment for same or a return of the eggs. [2 Hutchinson on Carriers (3 Ed.), sec. 730.]

The evidence we think conclusively shows a payment for these eggs by the consignee Tyler Company to the plaintiff. The fifty-seven cases of eggs in question were a part of a purchase of one hundred cases by Tyler Company at 62½ cents per case, the other forty-three cases being shipped by freight. The shipment by express now in question was delivered to Tyler Company January 10, 1919. The value was $10.50 less express charges of $52.54. Plaintiff had drawn a draft for $775 on Tyler Company which it paid, leaving a balance due plaintiff of $222.46. An itemized statement of this transaction was sent to plaintiff on January 13, 1919. This statement was short one case of eggs, lost in transit, and defendant tendered in court the value of the shortage. The freight shipment of forty-three cases was received by Tyler Company January 16, 1919, the net proceeds of which amounted to $702.29, making Tyler Company then indebted to plaintiff $924.75. On January 22, 1919, plaintiff made another shipment of butter and eggs to Tyler Company amounting to $1225.72, making the total indebtedness $2150.47. Tyler Company paid this balance by paying a draft for $1200 drawn by plaintiff, charge for freight, etc., $55.34, and by sending plaintiff their check for $895.13, which plaintiff received and cashed. This check was accompanied by an itemized statement showing the items of debit and credit on the shipments of eggs and butter to Tyler Company, including the eggs now in controversy, and the check covered the balance due on such account. The plaintiff in receiving this check and the statement accompanying it was informed and knew that the check then received paid the balance due it on the three shipments of merchandise made in January, 1910, to Tyler Company, one of which shipments was the fifty-seven cases of eggs now in controversy. The plaintiff at that time had only an indefinite claim for damages growing out of the eggs handled in cold storage during the previous summer and knew that Tyler Company were disputing any such claim. Tyler Company had a right to designate on what items they were making payment, even if other items were owing by them to plaintiff. [21 R.C.L., pp. 88 and 112; Beck v. Haas, 111 Mo. 264, 20 S.W. 19; Brady v. Hill,1 Mo. 315.] Further proof to this effect is that plaintiff made a further shipment of butter and eggs to Tyler Company February 8, 1919, drawing a draft for $400 against same which when paid by Tyler Company left the account $15.95 overdrawn. Thereupon Tyler Company again rendered plaintiff a full itemized statement covering the shipment now in controversy and all subsequent shipments and showing a balance due them on these shipments of $15.95. This amount plaintiff paid to Tyler Company by its check dated February 13, 1919. This conclusively shows a settlement of the merchandise account between plaintiff and Tyler Company including the shipment of eggs now in controversy and left open and unmentioned the prior claim for damages, if any, growing out of the intimated rather than claimed tort of Tyler Company in substituting inferior eggs for those held in cold storage during the previous summer. Having thus received payment from Tyler Company for the shipment of eggs which defendant delivered to that company without collecting in advance, plaintiff cannot again collect from defendant. This conclusion makes harmless the other errors complained of and same need not be noticed. The judgment of the trial court is correct and is affirmed.

Farrington and Bradley, JJ., concur.