E. C. Robinson Lumber Co. v. Cottonseed Delinting Corp.

• Decision Date: 11 December 1947
• Docket Number: No. 6711.,6711.
• Citation: 207 S.W.2d 63
• Parties: E. C. ROBINSON LUMBER CO. v. COTTONSEED DELINTING CORPORATION.
• Court: Missouri Court of Appeals

207 S.W.2d 63

E. C. ROBINSON LUMBER CO. v. COTTONSEED DELINTING CORPORATION.

No. 6711.

Springfield Court of Appeals. Missouri.

December 11, 1947.

Rehearing Denied December 30, 1947.

Appeal from Circuit Court, Butler County; Randolph H. Weber, Judge.

"Not to be published in State Reports".

Suit on an open account by the E. C. Robinson Lumber Company, a corporation, against the Cottonseed Delinting Corporation, to recover a balance due for building materials sold by plaintiff to defendant, which filed a counterclaim for damages caused by plaintiff's defective construction of and failure to complete its contract to construct a cottonseed storage building for defendant. Judgment for plaintiff, and defendant appeals.

Affirmed.

John M. Dalton, of Kennett, for appellant.

Hal H. McHaney, of Kennett, for respondent.

VANDEVENTER, Judge.

This is a suit on an open account. Plaintiff (respondent here) filed its petition in the circuit court of Dunklin County on August 30, 1943, alleging that it had sold and delivered to defendant, on an open account, a large amount of building material from September 25, 1941, to and including September 31, 1942. That the prices charged were reasonable and that defendant agreed to pay the same and that it had paid certain amounts and received certain credits for merchandise returned and errors in computation, but there was a balance due of $880, which defendant refused to pay and plaintiff asked judgment for that amount with 6% interest from February 4, 1943. Attached to the petition was an itemized statement of the materials alleged to have been delivered, money advanced on labor, etc. To this petition defendant filed its amended answer denying that the contract was an open account but alleging that the plaintiff entered into a contract with it to build a certain cottonseed storage building at Kennett, Missouri for the sum of $1580.84 according to certain plans and specifications agreed upon by both parties and that plaintiff also agreed to furnish all labor, materials, lumber and other building materials that went into the construction of the building. That one deduction of $45 for change in plans was mutually agreed upon and that another change added $29.56. Defendant admitted that it agreed to pay plaintiff for construction of the building $1565.40, and that on April 4, 1942, it paid on the contract the sum of $1000. It was further asserted the building was not completed according to the plans and specifications in a satisfactory manner.

As a counterclaim, defendant alleged that because of the defective construction of the building, the roof leaked and that cotton seed stored therein by defendant had been damaged to the amount of $600, that due to the failure of plaintiff to complete its contract for the construction of the building, defendant was compelled to put on a new roof, which amounted to $900. Defendant prayed judgment on its counterclaim for $1500.

Plaintiff filed a reply denying that it entered into a contract for the construction of the building and asserted that the building was constructed by a carpenter, one Fred Hall, under the supervision and direction of the defendant in accordance with plans furnished him by the defendant, and that prior to the construction of the building, the carpenter, Fred Hall, had advised defendant that a roof built according to the plans and specifications would be unsatisfactory but defendant insisted on it being built as planned. That all the defects complained of were due to the defective plans of construction designed by defendant.

As an answer to the counterclaim, plaintiff asserted that if any cotton seed was damaged by reason of leaks, such damage was due to the negligence of the defendant, that the roof replaced by the defendant was of a different kind and more expensive than that included in defendant's plans and specifications and that all the material which was replaced by the new roof was used by the defendant and not returned or tendered to plaintiff. Upon these issues, the case went to trial and the jury returned a verdict in favor of plaintiff on its petition and against defendant upon defendant's counterclaim.

There is no contention here that the evidence was insufficient to support the verdict of the jury. If plaintiff's evidence was believed by the jury, it should have found for plaintiff and, on the other hand, if it believed defendant's evidence, it should have found for defendant. It was a question of fact.

Defendant's first assignment of error relates to the discharge of a juror who was afterwards summoned by the plaintiff as a witness. The juror was one Claud Lucas, who was the manager of the plaintiff's lumber yard at Poplar Bluff, Missouri in Butler County, where the case had gone on a change of venue. The record shows that on the 31st day of January, 1947, this cause came on to be heard and the parties, being present, with their attorneys, announced ready for trial. That Claud Lucas, one of the petit jurors, and Van Baker, another juror, were excused for cause and in their stead, the sheriff selected and returned two other men. Whereupon both parties made their respective challenges, leaving a jury of twelve selected to try the cause. Neither of the jurors selected by the sheriff was included in the panel of twelve. The trial proceeded and that afternoon, the plaintiff called as a witness, Claud Lucas, who had been on the jury panel and excused at the opening of the trial that morning and who was the manager for the plaintiff's lumber yard at Poplar Bluff. The record does not show for what cause Lucas was excused but apparently because he was local manager for plaintiff. This action on the part of the court certainly was in favor of the defendant but it is not the excusing of the juror to which defendant objects, it is the fact that he was later used as a witness. Its objection is based upon the statute, 712, R.S.Mo.1939, Mo.R.S.A., which provides that it shall be unlawful for any party to a law suit to have "summoned off of the regular panel of any jury, qualified for the trial of any cause, any of such jurors, to be used as witnesses" in any cause pending in the court unless the party in whose behalf such juror is summoned as a witness shall first show to the satisfaction of the court that the juror is a material witness for the party summoning him and whose evidence he should have in the trial of the cause and unless he does so, the court may refuse to allow the juror "to be summoned off the jury:" As stated, plaintiff called Mr. Lucas as a witness. It showed by him that he had been employed by the plaintiff for 20 years and had had experience in observing the construction of buildings with corrugated iron roofs. Then plaintiff sought to show by the witness the customary and ordinary way to nail such roof onto the "sheathing." The court sustained an objection to that question but permitted the witness on further examination to testify that when corrugated iron roofing was nailed to one-inch "sheathing," laid flat, that the expansion and contraction would have a tendency to pull out the nails holding the roofing and that the result would be leaks around the nail heads. He was then shown the plans prepared by defendant for construction of the storage and testified that if the building was built according to the plans, it would be impossible to keep it from leaking. On cross examination by defendant's counsel, he testified that the length of time before the roof would begin leaking would depend on weather conditions, that it would not start leaking immediately but that buildings built like this one, "couldn't keep from leaking." Then defendant's counsel proceeded to question the witness as follows:

"Q. Do your men that you employ have to be paid extra for clinching the nails? A. No, sir, we don't take any contracts.

"Q. You don't take any contracts? A. No, sir.

"Q. Here at all? A. No, sir.

"Q. Now you are an employee of the Robinson Lumber Company? A. Yes, sir.

"Q. And you have been for twenty years? A. That is right."

After a few more questions, counsel for defendant moved that the testimony of this witness be excluded for the reason that he was "brought in here for the sole and exclusive purpose of prejudicing this jury, the minds of the jury who live here locally and who know him personally" and that he was not brought in in good faith. (There was no evidence supporting this statement.) This objection was overruled.

In its motion for a new trial, defendant asserted that the court erred in not striking out the testimony of Mr. Lucas for the reason that he was manager of the plaintiff's company at Poplar Bluff and made the voluntary statement "Robinson did not make any contracts like this" which was not in response to a question. The court was further charged with error for failing to comply with the provisions of Section 712 of the Mo.R.S.1939, Mo.R.S.A., by permitting plaintiff to use Mr. Lucas as a witness, that the court knew Mr. Lucas was on the regular panel as did the plaintiff, but such facts were unknown to the defendant until after the verdict; that the court abused its discretion in failing to discharge the jury. At the time witness Lucas was called as a witness, he was not a juror but had been excused by the court. It seems to us that the statute clearly means that without the consent of the court, a party can not call as a witness a member of the regular panel, who has qualified for the trial of that particular cause. The statute further says, unless the jurors "so to be summoned are material witnesses" the court may refuse to allow such juror to be summoned "off the jury." In this case Mr. Lucas was no longer a juror, he was excused, another juror had taken his place and the using him as a witness was not error. A "summoned juror," who has been excused is no longer a juror. State v. Taylor, 345 Mo. 325, 133 S.W.2d 336. Another reason why this case could not be reversed upon...