Boyer v. Leidigh Havens Lumber Co.

• Citation: 174 S.W. 113,187 Mo. App. 523
• Decision Date: 01 March 1915
• Docket Number: No. 11476.,11476.
• Court: Court of Appeal of Missouri (US)
• Parties: BOYER v. LEIDIGH & HAVENS LUMBER CO.

174 S.W. 113

187 Mo. A. 523

BOYER v. LEIDIGH & HAVENS LUMBER CO.

No. 11476.

Kansas City Court of Appeals, Missouri.

March 1, 1915.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action for conversion by L. T. Boyer against the Leidigh & Havens Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Frank G. Warren, of Kansas City, for appellant. Haff, Meservey, German & Michaels, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff sued defendant in a justice court for the conversion of 158 doors valued at $350. A jury was waived in the circuit court to which the cause was appealed, and plaintiff, at the close of his evidence, was compelled to take an involuntary nonsuit with leave. Afterward his motion to set aside the nonsuit was overruled, and he appealed.

The question for decision is the sufficiency of the evidence introduced by plaintiff to raise an issue for the court to determine as a trier of fact.

Boyer, the plaintiff, and E. N. Woods, were young men of the same age who were lifelong friends and sustained intimate and confidential business relations %with each other. Woods was doing business in Kansas City as a wholesale lumber dealer under the name of the Woods Lumber Company and had an office in an office building. Boyer was engaged in selling doors on his own account and was allowed to have his office with Woods free of charge. He also kept the books for Woods' business, for which he was paid a salary, and he sold lumber for Woods on commission. In February, 1913, Woods bought 750 fir doors from a dealer in Tacoma, Wash., and at the time the order was given he and Boyer agreed that the latter would purchase half of the doors from Woods at the same prices Woods was to pay and would credit a note of $1,000 he held against Woods for borrowed money, with the purchase price of the doors he bought. But when the car arrived Woods had made a partial payment on the note which reduced the amount to about $300, and, instead of buying half the doors, Boyer agreed to take a sufficient quantity to satisfy the remainder on the note. In other words, instead of buying 375 doors from Woods, he bought 205 of the value of $300. An itemized but unsigned memorandum of the sale was made by Woods, which showed that 205 doors in eight different sizes were purchased by Boyer. In five of the sizes Boyer took 10 doors each; in one 30 doors, in another 50, and in another, 75. The 750 doors were unloaded from the car and piled in a warehouse under the control of Boyer under an agreement that, since Boyer was allowed to have an office with Woods without charge, he would charge Woods nothing for storing his doors. There was no separation of the doors and no marks placed upon them by which the 205 purchased by Boyer might be identified. Boyer superintended the unloading and storing, and afterward attended to making sales and deliveries. When a sale was made he would check it off on the memorandum and note thereon the number of doors he had left in the piles. He procured a policy of insurance covering all the...