L. & A. Scharff Distilling Co. v. Springfield Coal, Ice & Transfer Co.

ROBERTSON, P. J. This action was brought before a justice of the peace in Greene county upon a statement in two counts there filed, the first alleging that the defendant without leave and wrongfully took a barrel of whiskey belonging to the plaintiff which it had not returned, to plaintiff’s damage in the sum of $90.48, and the second count alleging that plaintiff was entitled to the immediate possession of the whiskey which came into possession of the defendant, who then and there unlawfully converted it to its own use and disposed of the same to plaintiff’s damage in said sum. After a trial in the justice of the peace court, an appeal was taken to the circuit court, where plaintiff took an involuntary nonsuit with leave to move to set same aside. Within due time the motion was filed, overruled and an appeal taken by the plaintiff. [500] The facts in this case,, as developed by the testimony, are that the plaintiff, whose place of business is in St. Louis, shipped via the Frisco railroad a barrel of whiskey consigned to Brashears & Murphy at Springfield, who were to pay the freight. Upon the arrival of said shipment at Springfield, the defendant, being engaged in the transfer business at that place, hauled tbe barrel to the saloon of J. O. Peters, but before the mistake was discovered Peters had sold a large portion of the contents of the barrel. Soon after the discovery of this mistake a representative of the plaintiff appeared upon the scene and he and Murphy, of the firm of Bra-shears & Murphy, went to and had an interview with Mr. Eaton, who was connected with the defendant company. The testimony is that Mr. Eaton agreed to pay for the barrel of whiskey. We shall assume that Mr. Eaton had full authority to and did speak for the defendant and that defendant agreed to pay plaintiff for the value of its whiskey. There is no testimony in the entire record, however, that the plaintiff released Brashears & Murphy, to whom it had sold and delivered the whiskey, a delivery to the railroad being a delivery to them, or that Bra-shears & Murphy released the defendant. The situation thus developed by the testimony is that the shipment of the whiskey was made to Brashears & Murphy and, consequently, when'it arrived in Springfield and' the defendant wrongfully delivered it to a third party, the only claim then existing against the defendant was in behalf of Brashears & Murphy, the then owners of the whiskey. Brashears & Murphy owed the plaintiff for the whiskey. The defendant owed the plaintiff nothing. The defendant received' no consideration for its agreement to pay the plaintiff the'amount of'its claim against Brashears & Murphy unless Bfáslieárs & Murphy released the defendant on account of the wrongful delivery of the whiskey. [Greene v. Musson, 169 Mo. App. 680, 684, 155 S. W. 849.] Further, in or [501] cler to fix the liability of the defendant, it was essential that the plaintiff should have discharged Brashears & Murphy as its creditor and accepted the defendant in their stead (Davis v. Dunn, 121 Mo. App. 490, 494, 97 S. W. 226); otherwise, Brashears & Murphy would receive no consideration for their release of the defendant. In order to constitute a novation, the creditor and the debtor and the third person must all agree that the original debtor be released and the third person be substituted in his stead. [Babbitt v. Railroad, 149 Mo. App. 439, 455, 130 S. W. 364; Leckie v. Bennett, 160 Mo. App. 145, 159, 141 S. W. 706.] Novation is never presumed, but must be clearly established. [See cases last above cited.] The trial court, under the testimony, properly refused to set aside the involuntary nonsuit and, therefore., the judgment is affirmed. Sturgis, J., concurs. Farrington, J., not sitting.