Robbins v. Chicago & Alton Railway Co.

ELLISON, J. This is an action in replevin for the possession of an automobile. It was instituted before a justice of the peace, where plaintiff had judgment. The defendant appealed to the circuit court, where a trial was had Avhich resulted in the court giving a peremptory instruction to the jury to find for the defendant. The whole controversy is over a small difference between the parties as to the proper charge to be made [308] for freight on the machine. It was shipped to plaintiff and on arrival at Kansas City defendant notified him. He tendered $91 for the freight and $1 for one day’s storage, making $92. The defendant refused this offer and claimed $101.60, and refused to give up possession without such payment was first made. Plaintiff thereupon brought this action. Conceding the evidence on the sufficiency of the crating made a case for the jury, yet the defendant, as a carrier, has a lien on the property for its freight. That lien has not been extinguished. It is true plaintiff tendered the freight at the outset, but he failed to keep such tender good by deposit in court. In such circumstances he is without right to the possession which he seeks to obtain, for the lien of the defendant carries with it the necessary right to the possession. [Woolner v. Levy, 48 Mo. App. 469; Landis v. Saxton, 89 Mo. 382; Knollenberg v. Nixon, 171 Mo. 445.] The judgment must be affirmed. All concur.