Fordyce v. Dempsey

Riddick, J. (after stating the facts). This is an action to recover the value of corn which was shipped by Hunter & Co. from La Forge to Dempsey’s switch over a railway which was being operated by receivers. The corn was consigned to Hunter & Co., but after it reached Dempsey was turned over to Dempsey & Beasley by Curley, Rowley & Co., of Texarkana, who took possession of it without right, for the corn was not consigned to them, and they had not paid for it, and had no right to take charge of it, or to authorize anyone else to do so. As the corn had been delivered without the consent of the consignees, Hunter & Co., the receivers of the railway company were compelled to make good the loss, and paid the consignees therefor in full, and now claim in this action the right to recover the value of the corn from Dempsey & Beasley, who converted it to their own use. There can be no question that this contention is sound, and must be sustained, unless the receivers are estopped.by their conduct from sustaining an action for the value of. the corn against the defendants. To sustain their claim of an estoppel, the defendants proved that for a year or two they had been buying corn through Curley, Rowley & Co., who had delivered it to them in the same way without complaint on the part of the plaintiffs or anyone else. But there is no evidence to show that there was any irregularity in the delivery of the cars which Curley, Rowley & Co. had previously delivered to the defendants, and concerning which there had been no complaint. So far as the evidence shows, those cars may have been consigned to them,' or, if not consigned to them, they may have paid for the corn and delivered the bill of lading for the same to the receivers or company before they turned over the corn to defendants. This evidence falls far short of showing facts sufficient to make out an estoppel, and we think the instruction given by the court on that point) at request of defendants was abstract and misleading. The undisputed evidence makes out a clear case in favor of plaintiffs for the value of the corn. The defendants themselves testified that the value of the corn was $232.50, and they received it on the 3d day of May, 1889. We are of the opinion that the plaintiffs are entitled to recover the value named with interest from date the corn was taken by defendants. The clerk will make the computation, and enter judgment accordingly.