Hunter Bros. Milling Co. v. Stanley

ELLISON, J. This action is for damages for breach of contract. The judgment in the trial court was for the defendant. The petition is founded upon a contract of sale of two hundred tons of cottonseed meal to be delivered to defendant free on board the cars at Ascot, Kansas, and in consideration of the sale and delivery to defendant of the meal defendant agreed to pay plaintiff at the rate of $23.25 per ton. The petition then alleges that in compliance with the contract plaintiff shipped the meal to defendant at Ascot, Kansas, where it arrived in due time, but that defendant would only receive one car load thereof, for which he paid, and plaintiff was obliged to resell the balance and reship to different points, whereby certain damages are alleged to have resulted. The meal was shipped to Ascot, Kansas, but not to defendant. It was consigned by bills of lading to plaintiff’s own order and drafts drawn by plaintiff on defendant were attached to the bills and forwarded to a bank at Anthony, where defendant resided. Defendant opened the first car without consent of the railway company and paid for the same before, as he states, he discovered it was short in weight. The railway company refused permission to open other cars. In our opinion the judgment was necessarily for the defendant. Under the contract alleged in the petition he was entitled to a delivery to himself on the cars at Ascot. At the time of the contract the goods were not present. The sale was executory; there was to be a future delivery at a certain place.. This implied a right of inspection of quality and quantity and then, as contemporaneous acts, there should be delivery and payment. On a shipment directly to the consignee a delivery to the carrier is a delivery to the consignee; but that is not so when the shipment is to the consignor’s own order. In the latter instance he does not part with [311] his property. In the former, he does, subject to his right of stoppage in transitu. By plaintiff’s act in this case it was necessary'to a delivery to defendant that he should have possession of the bills of lading endorsed by plaintiff, and this he could not get without first paying the drafts attached. By this means defendant was cut out of the most important rights of a vendee in an executory contract of sale. [Kentucky Refining Co. v. Globe Co., 104 Ky. 559; Thick v. Railroad, 137 Mich. 708.] Plaintiff has failed to show a performance of the contract as alleged by itself and cannot be allowed to recover. [Southern Lumber Co. v. Mercantile Co., 89 Mo. App. 141.] The case stated by the petition considered in connection with the evidence shows that in no event can plaintiff recover in .this action, and the judgment is affirmed. All concur.