Elders v. Memphis Land & Lumber Co

• Decision Date: 07 January 1924
• Docket Number: No. 3295.,3295.
• Parties: ELDERS v. MEMPHIS LAND & LUMBER CO.
• Court: Missouri Court of Appeals

257 S.W. 515

ELDERS v. MEMPHIS LAND & LUMBER CO.

No. 3295.

Springfield Court of Appeals. Missouri.

January 7, 1924.

Rehearing Denied January 23, 1924.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by James Elders against the Memphis Land & Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Henson & Woody, of Poplar Bluff, and Gallivan & Finch, of New Madrid, for appellant.

Ray B. Lucas, of Benton, for respondent.

COX, P. J.

Action for lumber sold and delivered. Verdict and judgment for defendant. Plaintiff appealed.

The petition is in the usual form on, account for goods sold and delivered. The answer is a general denial followed by an allegation that plaintiff represented to defendant that he did not own the lumber in question, but that said lumber belonged to the Leach Lumber & Tie Company of Poplar Bluff and that he represented said last-named company to secure a buyer therefor; that the Leach Lumber Tie Company was the owner of the lumber and that defendant bought the lumber from that party and not from plaintiff; that the Leach Lumber & Tie Company was indebted to defendant and that this suit was brought in the name of plaintiff to prevent defendant from setting up a counterclaim for the amount owing from said Leach Lumber & Tie Company to defendant; that in fact defendant did not owe plaintiff anything and plaintiff was not a proper party to institute and prosecute this suit. The reply was a general denial.

It will be noted that the defense set up in this answer is that the lumber bought by defendant did not belong to plaintiff, but was the property of the Leach Lumber & Tie Company and that this suit was brought in the name of plaintiff to evade a counterclaim on part of defendant against the real owner, Leach Lumber & Tie Company. The evidence for plaintiff was to the effect that he was the owner of the lumber and that the Leach Lumber & Tie Company had loaned him money and was his agent to sell the lumber and was to collect for same and apply on the debt from plaintiff to the Leach Lumber & Tie Company. There was evidence on part of defendant tending to sustain the allegations of its answer.

Complaint is made of the admission of certain testimony on part of defendant tending to show that Leach Lumber & Tie Company was indebted to the defendant. All we deem it necessary to say in relation to that character of testimony is that it was competent to show that defendant claimed, in good faith, that the Leach Lumber & Tie Company was indebted to it. To this end, it was competent to show defendant's account which it claimed was owing to it by the Leach Lumber It Tie Company. It would not be competent to go into all the details or submit to the jury the question of whether or not the Leach Lumber & Tie Company was in fact indebted to defendant, but under the allegations of the answer it was competent to show what defendant claimed as to an indebtedness to it from the Leach Lumber & Tie Company as bearing on the question whether this suit was brought in the name of plaintiff for the purpose of evading a counterclaim by defendant.

For the plaintiff the court gave the following instruction:

"The court instructs the jury that if you find and believe from the evidence in this case, that James Elders was the owner of the lumber in question and that the same was sold to the defendant by him for the sum of $2,036.04, and that said sum has not been paid, then your verdict will be for the plaintiff for the said sum of $2,036.04."

For the defendant the court gave three instructions as follows:

"No. 1. The court instructs the jury that if you find and believe from the evidence in this case that the defendant did not purchase the two carloads of lumber in question from the plaintiff, but purchased same from the Leach Lumber & Tie Company and that said Leach Lumber & Tie Company delivered said lumber to defendant, then plaintiff cannot recover, and your verdict will be for the defendant."

"No. 2. The court instructs the jury that...