Fletcher v. Southern

• Decision Date: 21 April 1908
• Docket Number: No. 6,361.,6,361.
• Citation: 84 N.E. 526,41 Ind.App. 550
• Parties: FLETCHER et al. v. SOUTHERN.
• Court: Indiana Appellate Court

41 Ind.App. 550

84 N.E. 526

FLETCHER et al.

v.SOUTHERN.

No. 6,361.

Appellate Court of Indiana, Division No. 2.

April 21, 1908.

Appeal from Circuit Court, Martin County; Hiram McCormick, Special Judge.

Action by Walter Southern against Foster A. Fletcher and another, doing business under the firm name of Fletcher & Johnson. From a judgment for plaintiff, defendants appeal. Reversed, with instructions.

J. T. Rogers, for appellants. F. Gwin, for appellee.

COMSTOCK, J.

Appellee, plaintiff below, brought this action against appellants, doing business under the firm name of Fletcher & Johnson, to recover for lumber alleged to have been sold them. The complaint is in three paragraphs.

In the first he alleges, in substance, that he sold and delivered to the defendants, 11,269 feet of poplar lumber, at and for the price of $19 per 1,000 feet; that he delivered at the special instance and request of the defendants at the town of West Baden, Ind., - feet of oak lumber at the price of $14 per 1,000, commons, and $29 per 1,000 for first and seconds; that all of said lumber was contracted for by the agent of said partnership at Willow Valley, Ind.; that all of said lumber was of the value of $333.66; that the defendants paid to the plaintiff the sum of $119.55 leaving a balance of $214.11 due the plaintiff; that said lumber was to be paid for when delivered to defendants at Willow Valley, Ind.; that said lumber was delivered at Willow Valley, Ind., on the 1st day of September, 1904, and payment for the same demanded; that said sum of $214.11 is now due, and has been for a long time past. A bill of particulars of which lumber is filed herewith and made a part hereof, and marked “Exhibit A.” Wherefore plaintiff demands judgment.

In the second paragraph of the complaint it is alleged that the defendants purchased of and from the plaintiff the goods, wares, and personal property, a bill of particulars of which is filed herewith, made a part hereof, and marked “Exhibit A,” for an agreed price of $19 per 1,000 feet for the poplar, log run, with the mill culls out, and $24 per 1,000 for first and seconds oak lumber, and $14 per 1,000 for commons, oak lumber, which poplar lumber was to be delivered at Willow Valley, Ind., and the oak lumber was to be delivered at West Baden, Ind.; that in pursuance of said purchase the plaintiff delivered to defendants at West Baden, Ind., - feet of first and seconds and - feet of common oak lumber at West Baden, Ind., which said oak lumber was by the defendants accepted, and that the defendants paid the plaintiff the sum of $- on account of said sale and purchase of said lumber; that in pursuance of said sale and purchase the plaintiff delivered at Willow Valley, Ind., 11,269 feet of poplar lumber, which was the full amount of poplar lumber which he sold to said defendants by the terms of said sale, and demanded the accepting,measuring, and paying for said lumber, and they refused and still refuse to measure and accept the lumber and pay for the same, although frequently requested so to do; that the plaintiff has performed all the conditions of said contract on his part to be performed, and has tendered said goods to defendants and demanded payment for the same, which has been refused and is still refused; that said goods are now and have been for more than one year ready to be delivered to the defendants; that there is due the plaintiff from the defendants thereon the sum of $214.11 and interest from the 1st day of September, 1904, at the rate of 6 per cent. Wherefore he prays judgment.

The third paragraph alleges that on the - day of -, 1904, plaintiff and defendants, through and by their representative, William Johnson, entered into a verbal contract by which the defendants agreed to purchase of the plaintiff all the oak and poplar lumber that the plaintiff then had or might cut at his sawmill in Orange county, Ind., at and for the following prices: Poplar lumber $19 per 1,000 feet, log run, with the mill culls out of said lumber, to be by the plaintiff delivered at Willow Valley, Ind., and $24 per 1,000 feet for first and seconds of oak lumber, and $14 per 1,000 feet for the commons, oak lumber, to be delivered at West Baden, Ind.; that by the terms of said contract said lumber was to be delivered at the respective places designated, as soon as the same could be done by the plaintiff; that the plaintiff, within a short time, delivered to the defendants at West Baden, Ind., - feet of oak lumber, which was in full of all oak lumber he was to deliver, and demanded payment therefor, and defendants paid plaintiff, in pursuance of said demand, $119.55; that, further, in pursuance of said contract, on the...