Creelman Lumber Company v. DeLisle

• Decision Date: 05 July 1904
• Parties: CREELMAN LUMBER COMPANY, Appellant, v. DeLISLE, Respondent
• Court: Missouri Court of Appeals

82 S.W. 205

107 Mo.App. 615

CREELMAN LUMBER COMPANY, Appellant, v. DeLISLE, Respondent

Court of Appeals of Missouri, St. Louis

July 5, 1904

Rehearing Denied 107 Mo.App. 615 at 624.

Appeal from Cape Girardeau Circuit Court.--Hon. H. C. Riley, Judge.

Action for conversion and judgment of trial court for defendant.

REVERSED AND REMANDED.

STATEMENT.

Plaintiff is an Illinois corporation having its chief office in the city of Cairo in said State. The defendant is a member of a copartnership composed of himself, his brother, Alfonso DeLisle, and one Boon, doing business in New Madrid county Missouri, under the firm name of DeLisle Bros. & Boon. The firm owns a sawmill known as the Jones Mill at Portageville New Madrid county. On November 8, 1899, the plaintiff and DeLisle Bros. & Boon entered into a written contract whereby it was stipulated and agreed that plaintiff would take all the lumber sawed by the firm at the Jones Mill from November 8, 1899, to January 1, 1901, at prices agreed upon of various kinds and grades of lumber, including first and second red gum at eighteen dollars per thousand feet, and common and shipping cull gum at seven dollars per thousand feet, to be delivered to the plaintiff f. o. b. at the mill, plaintiff to pay cash, less two per cent, when measured and inspected by its authorized inspector "as loaded on cars at said mill," all lumber, except oak and ash to be delivered dry on cars. The contract contains the following provisions:

"It is further agreed between the parties to this contract that between the first and tenth day of each month, during the period of this contract, beginning December 1, 1899, said party of the first part (plaintiff) shall estimate the amount of lumber said party of the second part has in completed piles, on hand at his mill, and the lumber so estimated shall be marked F. E. C. L. Co., and each pile numbered, and said party of the second part shall give to said party of the first part a written lease of the ground, on which said lumber is piled, without expense to said party of the first part. Said lease to extend over a period sufficiently long to enable said party of the first part to ship out lumber so manufactured and sold by said party of the second part to said party of the first part, and upon receipt of said lease said party of the first part agrees to advance on said lumber the sum of five dollars per thousand feet for all lumber in completed piles, except oak and ash, and ten dollars per thousand feet on completed piles of oak and ash lumber. Said advance so made to be charged to said party of the second part, and said party of the first part is to credit said party of the second part any and all lumber shipped on said amount of money so advanced, until money so advanced has been paid to said party of the first part, and then said party of the first part agrees they will pay in cash, according to terms of this contract, any and all moneys due said party of the second part, after said money so advanced shall have been paid. It is further agreed that said party of the first part will charge no interest to said party of the second part on said advance so made, but shall credit the full amount of the lumber shipped, until said advances so made are paid, as above mentioned.

"It is further agreed that said authorized inspector of said party of the first part shall inspect, measure and receive the above-mentioned lumber, in accordance with the terms of this contract, and render to said party of the second part, upon each car so loaded, a statement of the contents of said car, and said party of the second part shall receive from said party of the first part a credit memorandum for each and every car shipped out, promptly upon receipt of said advice from said party of the first part, at their office."

The petition, omitting caption, is as follows:

"Plaintiff, for its cause of action, says it is a corporation organized under the laws of the State of Illinois, engaged in the manufacture of lumber.

"That on the first day of November, 1901, it was, has been ever since and is now the owner of and entitled to the possession of forty-five (45) stacks of lumber stacked near the mill of DeLisle Bros. & Boon near Portageville, in New Madrid county, Missouri.

"That each of said stacks was plainly marked or branded 'F. E. C. L. Co.'

"That said forty-five (45) stacks contained 323,880 feet of lumber of the value of eighty cents per hundred feet, or two thousand five hundred and ninety-one and forty-hundredths dollars.

"That the defendant afterwards, and while plaintiff was the owner of and entitled to the possession of said lumber, wrongfully and unlawfully converted the same to his own use, to plaintiff's damage in the said sum of $ 2,591.40, for which sum, together with its cost and six per cent interest thereon from the date of conversion, plaintiff prays judgment. "

The answer was, first, a general denial and, second, a statement of the written contract and the following special allegations:

"Defendant further states that the forty-five stacks of lumber described in its petition is a part of the lumber that DeLisle Bros. & Boon cut at their mill, and that plaintiff has never paid defendant or the DeLisle Bros. & Boon for manufacturing the same, and that the plaintiff's claim to ownership, in and to said forty-five stacks of lumber described in its petition is bottomed upon its contract with DeLisle Bros. & Boon, made and executed as aforesaid on the eighth day of November, 1899, and the plaintiff has no other right, title, claim or interest in and to said lumber, except what it has through said contract, if in fact it has any, and defendant denies that plaintiff has any right, title, claim or interest in said lumber.

"The defendant now states and charges that at the time of the making of said contract, on the eighth day of November, 1899, this plaintiff had not complied with sections 1024-1025 of the Revised Statutes of Missouri, and that it had not filed in the office of the Secretary of State of Missouri a copy of its charter or articles of incorporation, and has not filed in the office of said Secretary of State of Missouri a certificate or a copy of its incorporation by the Secretary of the State of Illinois. That plaintiff at the time of the institution and bringing of this suit had failed, neglected and refused to comply with said sections of the Revised Statutes of Missouri, and had failed, neglected and refused to file in the office of the Secretary of State of Missouri a copy of its charter, or articles of incorporation, or a certificate, or a copy of its incorporation, as provided in said sections. The defendant further avers that the Secretary of the State of Missouri has never given or granted to the plaintiff a certificate showing compliance on its part with the laws of the State of Missouri, authorizing it to do business in Missouri, and so the defendant now states and charges that the plaintiff's contract made as aforesaid with DeLisle Bros. & Boon on the eighth day of November, 1899, was made and is now, in violation of the laws of the State of Missouri, and that the same can not be maintained or enforced in this court or in any other court in this State, and that the plaintiff has no right or standing in this suit, or any other suit for the enforcement of a contract made in violation of the law, and defendant now pleads these facts and provisions of said statute as a bar for the further prosecution of this cause by the plaintiff, wherefore, having fully answered, he again prays to be discharged with costs."

The forty-five stacks of lumber mentioned in the pleadings were all gum lumber. They had been stacked by the firm, estimated by plaintiff's inspector, five dollars per thousand feet paid on the estimate, and each pile marked "F. E. C. L. Co." The amount advanced by plaintiff to the firm on this estimate was, as shown by a statement of account approved by the firm, $ 1,153.23. On demand made by plaintiff for this lumber, the firm refused to deliver it or any part of it and afterwards sold the lumber on its own account.

At plaintiff's request the court instructed the jury as follows:

"1. The court instructs you, gentlemen of the jury, that this is a suit brought by F. E. Creelman Lumber Company, against Ed DeLisle, in which the plaintiff charges that the defendant converted to his own use, on or about the first day of November, 1901, forty-five (45) stacks of lumber, marked 'F. E. C. L. Co.,' containing 323,880 feet, of the alleged value of $ 2,591.40. You are instructed as a matter of law that any wrongful act, which negatives or is inconsistent with the plaintiff's right, constitutes in law a conversion of personal property, and in this connection...