Scott Bros. v. Chicago & Alton Railroad

57 Mo. App. 345, 1894 Mo. App. LEXIS 196

• Court: Missouri Court of Appeals
• Decided: March 26, 1894
• Status: Published

Opinion

Ellison, J.

— Plaintiffs seek to recover the possession of seventeen head of mules detained by defendant. They obtained judgment in the court below.

Plaintiffs shipped the mules from Cherry Run, West Virginia, to Cedar City, Missouri, on a through bill of lading. The mules were billed as weighing "twenty thousand pounds, and as shipped to destination in one ear at sixty-three cents per hundred pounds, amounting to $126. It seems that this sum is the regular rate to East St. Louis, Illinois, and that $33 per car is charged by defendant, whose road connects at East St. Louis, from that point to Cedar City. On the day the mules arrived at Cedar City defendant’s local agent notified one of plaintiffs, who called but did not take the mules; stating that he would do so next day and would pay the freight. By mutual consent the mules were unloaded and placed with a stable man for feed and keeping with the understanding that defendant was not surrendering possession. On the next day the misunderstanding as to freight charges developed. Plaintiff tendered the charges as specified in the bill of lading, viz., $126, and the property was refused him. It does not, directly, appear from the testimony, as preserved, on what ground the refusal was put, except as we may infer it to be the payment of all charges at the time of refusal. On the day of arrival no dispute or trouble is stated. The agent says he told plaintiff the amount of freight and that plaintiff said he would come next day and pay it. In the meantime the mules were put in a stable. On the next day plaintiff called and tendered the freight charge as specified in the bill of lading, but made no tender for the keeping and feed of the mules, amounting to $10.50. Plaintiffs did not institute this action for thirteen days thereafter; defendant keeping the mules during this time. Plaintiffs deposited into court the amount of freight specified in the bill of lading, but did not include the feed bill due for the day’s keeping at the time he made the tender.

In this connection the plaintiffs obtained an instruction on the hypothesis that they demanded the mules and tendered the freight on the day of arrival. This was error. The evidence was that they did not tender the freight until the day after the arrival. This instruction was likewise erroneous in authorizing a recovery without a tender of the feed bill which had accrued. Plaintiffs seek to avoid this serious defect in their case by the contention that the refusal to deliver the mules was based solely on account of the freight from East St. Louis to Cedar City not having been included in the tender and that defendant should- not be permitted to now allege a different cause. Without assenting or dissenting to the idea that this would have excused a proper tender by plaintiffs, it is enough to say that no sufficient facts are made to appear from the record to support such contention. The answer was sufficient to put plaintiffs on their proof as to their ownership and it specially set up the fact of the additional lien for the feed and care of the mules.

The defenses set up by defendant as to the merits were that the tariff rate of freight from Cherry Run to East St. Louis was $126, which defendant, as a con- - necting carrier advanced; and that, by a new and independent contract of shipment from. East St. Louis to Cedar City, plaintiffs agreed to pay $33 (there is some confusion of statement whether the sum was $33 or $35) for the shipment between these points. There was no defense set up as to a mistake concerning an insertion of the contract charge for freight in the bill of lading at Cherry Run. We think, therefore, that evidence as' to such mistake was not properly admitted.

The judgment will be reversed and the cause remanded.

All concur.