American Hardwood Lumber Co. v. Nickey

• Decision Date: 17 March 1903
• Citation: 73 S.W. 331,101 Mo. App. 20
• Parties: AMERICAN HARDWOOD LUMBER CO. v. NICKEY.
• Court: Missouri Court of Appeals

73 S.W. 331

101 Mo. App. 20

AMERICAN HARDWOOD LUMBER CO. v. NICKEY.

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

PARTNERSHIP — SURVIVORSHIP — CHOSES IN ACTION — ASSIGNMENT — ATTACHMENT — REASONABLE GROUNDS — WAIVER — ADMISSION TO PREVENT CONTINUANCE.

1. The surviving member of a partnership has the right to assign a chose in action which belonged to the partnership.

2. An attachment defendant by settling with the attachment plaintiff waives the question whether there were reasonable grounds for the suing out of the writ, and cannot set up that it was wrongfully sued out, and his performance of a contract with the attachment plaintiff thereby excused.

3. On an issue whether certain property had been delivered to defendant in as good condition as when received, plaintiff offered evidence of an absent witness, set forth in an application for a continuance, which defendant had admitted would be sworn to were the witness present. The application did not state that the witness had seen the property when delivered, and was an expression of witness' opinion as to its condition. Held, that the admission of defendant operated as a waiver of his right to cross-examine the witness as to his knowledge of the facts on which he based his opinion, and hence the evidence was improperly excluded.

Appeal from circuit court, St. Louis county; J.W. McElhinney, Judge.

Action by the American Hardwood Lumber Company against Leander F. Nickey. There was a judgment for defendant, and a new trial was ordered. From an order denying a motion to set aside the order granting a new trial, defendant appeals. Affirmed.

The case is here on a second appeal. In the statement of facts on the first appeal (see 89 Mo. App. 270 et seq.) the pleadings, the portions of the contract upon which the pleadings are predicated, and the history of the doings and transactions of all the parties in interest in respect to the sawmill and logs, are fully set forth. All the legal questions involved in the controversy were adjudicated on the first appeal, and the judgment was reversed, and the cause remanded to try a single issue of fact, to wit, whether or not Short & Kilgore had kept and performed the contract prior and up to June 15, 1896, at which time a substitutional contract was made between plaintiff and defendant herein, superseding the one upon which the suit was brought. After the cause was remanded the venue was changed from Butler to St. Louis county.

At the October, 1901, term of the St. Louis circuit court the issues were, by agreement of parties, submitted to the judge of the court sitting as a jury. It developed on the trial that Short, of the firm of Short & Kilgore, was dead at the time the assignment of the right to receive and to sue for and recover the $1,500 sued for in this suit was made to plaintiff by Kilgore, for the firm of Short & Kilgore. Plaintiff offered and read in evidence receipts and drafts showing that defendant, Nickey, had received payment in full for all logs he had furnished the mill from the date of the contract, September 10, 1895, up to and including June 15, 1896. About June 4th, Nickey attached the mill in a suit he commenced against Short & Kilgore. Plaintiff, under the contract of June 15, 1896, took possession of the mill, and continued to operate it until January 21, 1897, when he surrendered it to the defendant under a contract in which the following stipulations are found: "That the said party of the first part hereby surrenders and delivers to party of the second part possession of the sawmill of said party of the second part, located at Harveill, Missouri, of which party of the first part has had possession under contract with said party of second part; and said party of the second part hereby accepts possession of said sawmill, and agrees that the same at the date of receipt by him is in as good condition, natural wear and tear excepted, as when delivered by him to party of the first part. * * * But it is stipulated and agreed that the execution of this agreement shall not be taken or construed as a waiver of any right or claim for damages by reason of the breach, if any, by either party hereto, of any previous contract between the parties hereto, except as herein specially waived and released."

Before the trial was commenced plaintiff filed an application for a continuance on account of the absence of John H. Douglas and A. H. Woerheide. Douglas resided in the state of Arkansas. His mileage and witness fees had been tendered him and he promised to attend the trial. On the day before the cause was set for trial plaintiff's attorney received a telegram from Douglas' physician stating that Douglas was seriously ill, and unable to be present at the trial. Among other things the application stated that Douglas would swear to, if present, was that the mill was in as good condition when he stopped running it for plaintiff as when he first took charge of it. The application stated that in addition to what was stated in Woerheide's deposition he would testify, if present, that Short & Kilgore performed the contract of September 10, 1895, upon their part in all respects until the latter part of May, 1896, when the attachment was levied, and that further performance was prevented by defendant, and that the mill, "together with the machinery and appliances thereof, was in as good condition, natural wear and tear only excepted, as when Short & Kilgore took possession thereof under the contract of September 10, 1895." The court ruled that the nonattendance of Douglas did not afford plaintiff any ground for a continuance. Thereupon defendant agreed and consented that if Woerheide was present he would testify as set forth in the application. The court thereupon overruled the application.

After Woerheide's deposition (taken before the first trial, and which was directed to the payment for logs, etc., by Short & Kilgore, but not to the condition of the mill or machinery when plaintiff took possession of it under the contract of June 16, 1896) was read in evidence, plaintiff offered to read from the application for a continuance what it was alleged and admitted Woerheide would swear to if present, to wit: "That at the time the American Hardwood Lumber Company began operating said mill under the contract of June 15, 1896, the same, together with the machinery and appliances thereof, was in as good condition, natural wear and decay only excepted, as when Short & Kilgore took possession thereof under the contract of Sept. 10, 1895" — which is objected to because it is not stated that the witness saw the mill and machinery when delivered to Short & Kilgore or when delivered to plaintiff. The objection was sustained, to which ruling plaintiff then and there excepted.

Defendant testified that within four or five days after May 15, 1896, plaintiff sent Douglas to take charge of the mill, and that Short & Kilgore had nothing to do with the mill after that time; that when Douglas took charge the mill was racked and damaged; that one or two saws were broken, and a large piece cut out of the saw cab, which was of cast iron, rendering it worthless and damaging it a thousand dollars; that the engine was broken and damaged $500 or $600. Robert Rice, a witness for defendant, testified that he tempered a chisel for Kilgore, who with the help of another man cut a piece out of the saw cab, and that the cab never did any good afterwards; that he was a sawyer, and such a cab costs from $2,000 to $2,500. Plaintiff, in rebuttal, offered and read in evidence the pleadings and judgment rendered in the Oregon circuit court in the suit of Nickey v. Short & Kilgore and American Hardwood Lumber Company, which are set forth in the statement and opinion on the first appeal of this cause (see 89 Mo. App. 270).

At the request of plaintiff the court gave the following declarations of law: "(1) The court declares the law to be that if the firm of Short & Kilgore paid to defendant the sum of $1,500 as security for the performance upon their part of the contract of September 10, 1895, read in evidence; that said Short & Kilgore substantially performed said contract upon their part, from its date until on or about the 15th day of June, 1896; that on or about said 15th day of June, 1896, defendant refused to further perform...