Henderson v. E. Lauer & Sons

CHIPMAN, P. J.

It is alleged in the complaint that defendant “became indebted to R. F. Smith & Sons Company, Chicago, Illinois, in the sum of $471.31, lawful money of the United States, upon an express contract, fot goods, wares and merchandise, sold and delivered to said defendant” at its special instance and request; that before filing the complaint, Smith & Sons Company assigned the said claim to plaintiff and that no part thereof has been paid.

The answer denies the averments of the complaint except that defendant herein admits that it is indebted to plaintiff in the sum of $31.91. The cause was tried by the court without a jury, and plaintiff had judgment for the sum of $31.91 and interest, amounting in all to the sum of $34. Plaintiff appeals from the judgment and from the order denying his motion for a new trial.

The controversy arises out of a shipment of goods by plaintiff’s assignor to defendant of the value of $440.40, which

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before delivery were destroyed by fire in the warehouse of the railroad company at Alturas.

Witness Ryerson, bookkeeper and credit manager of Smith & Sons Company, testified that the shipment was “C. O. D. draft with bill of lading attached, the original bill of lading and draft sent to the First National Bank of Alturas. ’ ’ On November 13, 1914, Smith & Sons Company wrote defendant as follows: “We are to-day shipping your C. 0. D. order given to our Mr. Laney sending draft for $440.40 together with original invoice to the First National Bank at Alturas. When this draft is paid the bank will turn over the original invoice to you.” It was admitted that the goods remained in the warehouse of the railroad company for seven months, and until destroyed, June 28, 1915. It appeared also that the bank at Alturas notified defendant that the draft and bill of lading were in its possession, soon after being received by it. In answer to a letter written by Smith & Sons Company, defendant of date July 22, 1915, wrote not to “be worried or alarmed over the claim of $440.40,” and requesting that company to present the claim to the railroad company, which it did; and which was refused payment on the ground, as testified to by the railroad company’s general manager, that the company was acting only in the capacity of a warehouseman.