Seigfried v. Chicago, Burlington & Quincy Railroad

126 S.W. 798, 147 Mo. App. 543, 1910 Mo. App. LEXIS 573

• Court: Missouri Court of Appeals
• Decided: March 22, 1910
• Status: Published

Opinion

REYNOLDS, P. J.

(after stating the facts).— The assignments of error may be. summarized to be that there was no evidence showing the insolvency of the consignee and that without insolvency there is no right of stoppage in transit, it being also assigned as error that the court had excluded competent and relevant testimony to show that plaintiffs had no knowledge that the consignee was insolvent when they attempted to stop the shipment, and that there was no evidence tending to show that the defendant received for transportation the goods claimed to be lost. None of these assignments are maintainable.

Counsel on each side concede that the right of stoppage in transit must depend, among other facts, on the fact of the insolvency of the consignee. The report from the Dun Agency, the fact that on the very day Schlecter bought the goods, he no longer had his store at Rock Island, but had removed from there to Peoria about a week before; that he made no answer to the letter of March 5th from plaintiffs to him, and that the goods, although delivered, had not been paid for down to the institution of this suit before the justice, which was about April 9, 1908, over thirteen months after they had been bought, are all circumstances from which the court had a right to draw the conclusion that the consignee was insolvent when the order to stop the shipment was given.

Mr. Elliott, in his work on railroads, vol. 4 (2 Éd.), sec. 1539, states the conclusion of the authorities on the right of stoppage in transit, to be that the right “does not exist, even though the buyer is insolvent, if that fact was known to the seller at the time the sale was made.” He refers to the ease of Jeffries v. Fitchburg’ Railroad Co., 93 Wis 250, as instructive authority on this proposition of insolvency. Referring to that case, at page 256, it is stated: “Strict proof of insolvency is not required in order to justify the exercise of the right of stoppage in transitu. ‘By the word “insolvency” is meant a general inability to pay one’s debts; and of this inability the failure to pay one just and admitted debt would probably be sufficient evidence.’ [Benj., Sales, sec. 837; Smith, Merc. Law, 550, and note.] It had failed to pay the just and undisputed debts it had owed to the plaintiff and to the defendant for over ten months. Inquiry made at the former place of business of the debtor elicited the information that there was no such concern; . . . and the fact that the witness, . . . connected with it during its corporate existence and having some knowledge of its business, called to show that the right of stoppage had been terminated by delivery to the company or its agent, was not interrogated as to its solvency, is quite suggestive, in view of the facts in evidence, when fairly satisfactory proof of its solvency would have been fatal to the plaintiff’s action. The evidence constitutes sufficient prima facie proof of insolvency to sustain the finding. There was no attempt made to dispute this evidence or to rebut it. "We must hold that the evidence was sufficient to warrant the finding. ’ ’

It seems to us that the facts in the case at bar are sufficiently near to those in the Jeffries case to apply the rule there laid down in this case.

We are unable to understand what the assignment, that the court erred in excluding competent and relevant testimony to show that plaintiffs had no knowledge that the consignee was insolvent, refers to. The only evidence that was excluded was that offered by defendant in cross-examination of one of the plaintiffs, in which defendant under to oh to show previous transactions between plaintiffs and Schlecter. If the evidence had tended to show knowledge on the part of plaintiffs of the insolvency when the goods were sold, it would have been relevant, as before stated. But the effort was to show solvency. It was properly excluded. This is all of the evidence on that line that appears from the record to have been offered.

Furthermore the judgment can be sustained on the ground that the defendant is estopped from invoking the law applicable to the right of stoppage in transit which exists as between the consignor and the consignee. When one of the plaintiffs went to the agent of defendant and notified them of his suspicions and fears, those agents not only told him that they would stop the goods but that they had done so, and insisted upon his delivering over to them the hill of lading which he had in his possession, and on plaintiff’s endorsing on.it over the signature of plaintiffs, the order to stop- delivery. In the light of this, defendant is certainly estopped from now denying the right of plaintiffs to stop the shipment, either because there was no proof of insolvency or knowledge on the part of plaintiffs at the time of the fact of insolvency was lacking, for by these acts and declarations of its agents, defendant prevented plaintiffs from protecting themselves in some other way, if the right of stoppage had been denied or the right to exercise it challenged. It was open to defendant to have shown that before notification by the plaintiffs and before communicating with the agent of the defendant at Rock Island, delivery had been made to the consignee. It did not choose to introduce any such evidence, if there was any to that effect, and it stands here without any substantial defense to the plaintiffs’ claim.

‘As to the point made that there was no proof of delivery of the goods to defendant, the bill of lading turned over by plaintiffs to defendant and at its demand was most surely prima facie evidence that defendant had received the goods for transportation.

The judgment of the circuit court is affirmed.

All concur.