BLAND, P. J.
1. This is the fourth appeal of this case. The pleadings have not been changed since the first appeal. The motion to strike out the reply is the same as the motion to strike out that pleading on the first trial of the cause which was then overruled, in respect to which ruling of the trial court, this court said: ‘ ‘ The reply was not a departure under our practice act, but even if it were the only way of taking advantage of it was, by special demurrer or motion to strike out. The appellant by going to trial without doing either waived the objection. Scovill v. Glasner, 79 Mo. 449; Spurlock v. Railroad, 93 Mo. 537; Ibid, [179]*179104 Mo. 658; Gelatt v. Ridge, 117 Mo. l. c. 562; Philibert v. Burch, 4 Mo. App. 470; Mortland v. Holton, 44 Mo. l. c. 64.” Chemical Co. v. Lackawanna Line; 70 Mo. App. l. c. 280.
The ruling on the motion to strike out the reply is, as to this case, res adjudicaba.
2. It is contended by defendant that its liability as a common carrier under the contract of shipment, absolutely ceased upon arrival of the shipment in good order in New York and its storage there at pier 19 without regard to the question of notice.
The evidence of both parties shows that there was a well-established usage theretofore observed by the defendant, 'in respect to its shipments to these consignees, as well as all other consignees, that railroads having their termini in New York should give a personal notice to the consignees of goods consigned to parties in that city of their arrival, on the day or not later than the next day after their arrival. The evidence also shows that the consignees had knowledge of this usage and relied and acted upon it and depended upon defendant, in respect to the shipment in question to give them the customary notice. In respect to the duty of the defendant to have complied with this usage this court on the first appeal said:
“No notice to the consignees of the arrival of goods, shipped by railway, is required under the laws of Missouri, where the shipment arrives on time. Gashweiler v. Railroad, 83 Mo. 119, and authorities cited. The contract of shipment was made in Missouri, between a resident corporation of Missouri and a corporation having an office and doing business in Missouri, and is governed by the laws of Missouri. Gunter v. Bennett, 39 Tex. 303; Robinson v. Merchants Dispatch Co., 45 Iowa 470; Pennsylvania Co. v. Fairchild, 99 Ill. 260; First National Bank v. Shaw, 61 N. Y. 283. However, should a usage become established at any locality in Missouri, and be uniformly observed by railway companies, to
[180]*180give notice of the arrival of f réiglit to consignees at such locality, the usage, notwithstanding the general rule dispensing with notice, would he an exception to the general rule, and the carrier would be required to give the notice in order to relieve itself of negligence in the event of loss of or damage to the freight while in its possession as warehouse-keeper. Pindell v. Railroad, 34 Mo. App. 683; Prank v. Railroad, 57 Mo. App. 186. It is admitted that such a usage was uniformly observed in New York City by railways entering that city, and by the D. L. & W. R. R. Company, the appellant’s terminal line. This usage was binding upon the appellant, unless its observance was dispensed with by the special contract of shipment made in this case. The contract nowhere in terms states that notice of arrival of the goods should not be given. Nor does the requirement that the consignee should call for the goods on the day of their arrival, as contended for by the appellant, dispense with an observance of the usage, but, on the contrary makes its observance the more necessary, in order that the consignee might be able to make a timely call and comply with this requirement of the contract. ’ ’ Chemical Co. v. Lackawanna Line, 70 Mo. App. l. c. 282-3.
"We adhere to that ruling.
3. Defendant contends that, “Upon the admitted fact here disclosed, that the consignees never made any effort to call for, and receive, the goods at the pier, at any time between October 6, 1890, and December 24, 1890, as the contract of shipment required him to do, or at the warehouse, from December 24, 1890, to October 22, 1891, although repeatedly notified to call and remove them, as well as the further fact that he positively refused to do so after such notice, the court below should have directed a verdict in favor of defendant.”
Ik is an established fact in this case that the goods arrived on time and were stored by appellant at pier 19. Its liability as an insurer terminated on the arrival [181]*181and storage of the goods on October 6, 1890, and it was thereafter only liable as a warehouse-keeper and its liability, if any, must arise on account of its failure to comply with its contract to deliver the goods to the consignees. One of its duties under the contract was to give the consignees the customary notice by messenger of the arrival of the goods. The consignees had a right to and did rely upon such notice. It was, therefore, under no obligation to call for the goods until such notice, or some other notice sufficient to inform it of the arrival of the goods, was given. There is no evidence that notice by messenger of the arrival of the goods was given on the day of their arrival or on the next day thereafter. Appellant failed to observe the usage in this respect, but it introduced evidence tending to- show that on October 9, 1890, and again on Deceihber 15, 1890, notices were mailed to the consignees informing them that the goods had arrived and requesting it to-call at pier 19, pay the freight charges and take the goods away.. If either of these notices were received by the consignees, then plaintiff is not entitled to recover. If the notices were mailed, the presumption is that they were received.
Hartford and Maclagan testified that all the mail coming to the office of the consignees was received by one or the other of them and that notices of the arrival of shipments consigned to their company were carefully filed and preserved. They testified positively that they, nor either of them, never received the notices claimed by defendant to have been mailed to them and that no sncli notices were found among their files where they should have been, if received.
On the third appeal of this case (87 Mo. App. 667) we held that this evidence of Hartford and Maclagan was of some value and of sufficient potency to authorize the question, as to whether or not the notices had been received, to be submitted to the- jury. It was, therefore, a question of fact for the jury to determine' [182]*182whether or not these postal card notices had been received. The question was fairly submitted to the jury by the instructions, and while it seems to us that on this issue the verdict is against the greater weight of the evidence, yet it is not competent for us as an appellate court to set aside the verdict on the ground that we regard the evidence, or the weight of the evidence, differently from the jury. The jury may not have believed the appellant’s witnesses, and certainly did not, otherwise they would have found a different verdict.
4. In respect to the personal notice given by Foote to Maclagan, it is self-evident that if he gave those notices at the time he testified he gave them, the verdict should have been for the defendant.
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BLAND, P. J.
1. This is the fourth appeal of this case. The pleadings have not been changed since the first appeal. The motion to strike out the reply is the same as the motion to strike out that pleading on the first trial of the cause which was then overruled, in respect to which ruling of the trial court, this court said: ‘ ‘ The reply was not a departure under our practice act, but even if it were the only way of taking advantage of it was, by special demurrer or motion to strike out. The appellant by going to trial without doing either waived the objection. Scovill v. Glasner, 79 Mo. 449; Spurlock v. Railroad, 93 Mo. 537; Ibid, [179]*179104 Mo. 658; Gelatt v. Ridge, 117 Mo. l. c. 562; Philibert v. Burch, 4 Mo. App. 470; Mortland v. Holton, 44 Mo. l. c. 64.” Chemical Co. v. Lackawanna Line; 70 Mo. App. l. c. 280.
The ruling on the motion to strike out the reply is, as to this case, res adjudicaba.
2. It is contended by defendant that its liability as a common carrier under the contract of shipment, absolutely ceased upon arrival of the shipment in good order in New York and its storage there at pier 19 without regard to the question of notice.
The evidence of both parties shows that there was a well-established usage theretofore observed by the defendant, 'in respect to its shipments to these consignees, as well as all other consignees, that railroads having their termini in New York should give a personal notice to the consignees of goods consigned to parties in that city of their arrival, on the day or not later than the next day after their arrival. The evidence also shows that the consignees had knowledge of this usage and relied and acted upon it and depended upon defendant, in respect to the shipment in question to give them the customary notice. In respect to the duty of the defendant to have complied with this usage this court on the first appeal said:
“No notice to the consignees of the arrival of goods, shipped by railway, is required under the laws of Missouri, where the shipment arrives on time. Gashweiler v. Railroad, 83 Mo. 119, and authorities cited. The contract of shipment was made in Missouri, between a resident corporation of Missouri and a corporation having an office and doing business in Missouri, and is governed by the laws of Missouri. Gunter v. Bennett, 39 Tex. 303; Robinson v. Merchants Dispatch Co., 45 Iowa 470; Pennsylvania Co. v. Fairchild, 99 Ill. 260; First National Bank v. Shaw, 61 N. Y. 283. However, should a usage become established at any locality in Missouri, and be uniformly observed by railway companies, to
[180]*180give notice of the arrival of f réiglit to consignees at such locality, the usage, notwithstanding the general rule dispensing with notice, would he an exception to the general rule, and the carrier would be required to give the notice in order to relieve itself of negligence in the event of loss of or damage to the freight while in its possession as warehouse-keeper. Pindell v. Railroad, 34 Mo. App. 683; Prank v. Railroad, 57 Mo. App. 186. It is admitted that such a usage was uniformly observed in New York City by railways entering that city, and by the D. L. & W. R. R. Company, the appellant’s terminal line. This usage was binding upon the appellant, unless its observance was dispensed with by the special contract of shipment made in this case. The contract nowhere in terms states that notice of arrival of the goods should not be given. Nor does the requirement that the consignee should call for the goods on the day of their arrival, as contended for by the appellant, dispense with an observance of the usage, but, on the contrary makes its observance the more necessary, in order that the consignee might be able to make a timely call and comply with this requirement of the contract. ’ ’ Chemical Co. v. Lackawanna Line, 70 Mo. App. l. c. 282-3.
"We adhere to that ruling.
3. Defendant contends that, “Upon the admitted fact here disclosed, that the consignees never made any effort to call for, and receive, the goods at the pier, at any time between October 6, 1890, and December 24, 1890, as the contract of shipment required him to do, or at the warehouse, from December 24, 1890, to October 22, 1891, although repeatedly notified to call and remove them, as well as the further fact that he positively refused to do so after such notice, the court below should have directed a verdict in favor of defendant.”
Ik is an established fact in this case that the goods arrived on time and were stored by appellant at pier 19. Its liability as an insurer terminated on the arrival [181]*181and storage of the goods on October 6, 1890, and it was thereafter only liable as a warehouse-keeper and its liability, if any, must arise on account of its failure to comply with its contract to deliver the goods to the consignees. One of its duties under the contract was to give the consignees the customary notice by messenger of the arrival of the goods. The consignees had a right to and did rely upon such notice. It was, therefore, under no obligation to call for the goods until such notice, or some other notice sufficient to inform it of the arrival of the goods, was given. There is no evidence that notice by messenger of the arrival of the goods was given on the day of their arrival or on the next day thereafter. Appellant failed to observe the usage in this respect, but it introduced evidence tending to- show that on October 9, 1890, and again on Deceihber 15, 1890, notices were mailed to the consignees informing them that the goods had arrived and requesting it to-call at pier 19, pay the freight charges and take the goods away.. If either of these notices were received by the consignees, then plaintiff is not entitled to recover. If the notices were mailed, the presumption is that they were received.
Hartford and Maclagan testified that all the mail coming to the office of the consignees was received by one or the other of them and that notices of the arrival of shipments consigned to their company were carefully filed and preserved. They testified positively that they, nor either of them, never received the notices claimed by defendant to have been mailed to them and that no sncli notices were found among their files where they should have been, if received.
On the third appeal of this case (87 Mo. App. 667) we held that this evidence of Hartford and Maclagan was of some value and of sufficient potency to authorize the question, as to whether or not the notices had been received, to be submitted to the- jury. It was, therefore, a question of fact for the jury to determine' [182]*182whether or not these postal card notices had been received. The question was fairly submitted to the jury by the instructions, and while it seems to us that on this issue the verdict is against the greater weight of the evidence, yet it is not competent for us as an appellate court to set aside the verdict on the ground that we regard the evidence, or the weight of the evidence, differently from the jury. The jury may not have believed the appellant’s witnesses, and certainly did not, otherwise they would have found a different verdict.
4. In respect to the personal notice given by Foote to Maclagan, it is self-evident that if he gave those notices at the time he testified he gave them, the verdict should have been for the defendant. Maclagan admits that Foote gave him personal notice of the arrival of the goods, but testified that the notice was not given until nine months after the shipment had been made and after he had been notified by the plaintiff not to receive the goods. Here again was an issue of fact for the jury to pass upon, and their finding is conclusive on this court, although it appears to us the finding on this issue of fact was against the greater weight of the evidence. To find as they did, the jury must have disbelieved both Nichols and Foote, in respect to the time the notices were given. Both of these witnesses, as to the time the notices were given, are corroborated by the evidence of Herf, who testified that he requested the defendant to trace the goods as early as November 13, 1890.
5. To authorize the plaintiff to abandon the goods and to look to defendant for their value or loss on account of deterioration, it was incumbent on it to show to the reasonable satisfaction of the jury that appellant had by its misconduct kept the goods in an unsafe place until they had materially deteriorated. Plaintiff’s evidence tended to prove that while kept at pier 19, they were exposed to dampness and that such exposure deteriorated the goods and rendered them unsalable as [183]*183medicine. There was evidence to the contrary, but the jury on this issue found in favor of the plaintiff.
6. All of the issues of fact raised by the pleadings, and of which there was any evidence, were fully, fairly and plainly submitted to the jury by the instructions given by the court. The appellant’s refused instructions were either covered by those given, were inappropriate to the issues, or stated erroneous propositions of law and were rightfully refused.
7. Appellant contends that the action sounds in tort and that the court erroneously instructed the jury that interest might be allowed by them on the damages awarded.
The action is for a breach of the contract to ship and deliver the goods. The defendant breached the contract in failing to give notice to the consignees of the arrival of the goods, as required by the custom prevailing in New York City. The contract of shipment was made with this custom in view and with the tacit understanding that defendant would observe it, therefore, the custom formed a part of the contract and was as much the subject of a breach as any other provision in it. Appellant, also, in the trial of the cause, treated the action as one for breach of contract and asked and received instructions on the theory that the suit was for a breach of contract. It is the well-settled appellate practice in this State, that appellant will not be. permitted to shift his position in the appellate court and have the cause determined on a theory different from the one on which he elected to try it in the court below. Hall v. Goodnight, 138 Mo. 576; Stewart v. Outhwaite et al., 141 Mo. 562; State to use v. O’Neil, 151 Mo. 67; Guntley v. Staed, 77 Mo. App. 155; Pope v. Ramsey & Ramsey, 78 Mo. App. 157.
Discovering no reversible error, the judgment is affirmed.
Reyburn, and Goode, JJ., concur.