Grayson-McLeod Lumber Co. v. P. Heibel & Sons Mfg. Co.

• Decision Date: 08 January 1918
• Docket Number: No. 14960.,14960.
• Citation: 200 S.W. 96
• Court: Missouri Court of Appeals
• Parties: GRAYSON-McLEOD LUMBER CO. v. P. HEIBEL & SONS MFG. CO.

200 S.W. 96

GRAYSON-McLEOD LUMBER CO. v. P. HEIBEL & SONS MFG. CO.

No. 14960.

St. Louis Court of Appeals. Missouri.

Argued and Submitted December 5, 1917.

Opinion Filed January 8, 1918.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

"Not to be officially published."

Action by the Grayson-McLeod Lumber Company against the P. Heibel & Sons Manufacturing Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded.

E. W. Banister, A. H. Morris, and O. A. Fabick, all of St. Louis, for appellant. Boyle & Priest, George T. Priest, and W. W. Herron, all of St. Louis, for respondent.

REYNOLDS, P. J.

This is an action by plaintiff for the value of two carloads of lumber, which, it is averred, plaintiff, at the special instance and request of defendant, had sold defendant, defendant agreeing to pay $620.68 but had thereafter refused to accept the lumber. A general denial was filed by way of answer and on a trial before the court and a jury a verdict was returned in favor of plaintiff for $245.55, it appearing that after defendant had refused to receive the lumber plaintiff had sold it, and the jury deducted from the purchase price the amount realized at this sale, less costs of sale. Judgment following, defendant has duly appealed.

The principal point in controversy in the case was as to whether a certain party, a broker, who had made the purchase was at the time and in the transaction, the agent of defendant. As to this the evidence was sharply contradictory.

At the instance of plaintiff the court gave two instructions of which complaint is made, namely:

"1. The court instructs you that if the order given by defendant's agent was reduced to writing by him, then it is immaterial whether or not the authority for the order given to its agent, by defendant, if any, was oral or not.

"2. The court instructs you that if you find from the evidence that defendant company on or about December 5th, 1912, by and through its agent, ordered from plaintiff company two cars of lumber for which defendant agreed to pay $620.68, that thereafter plaintiff company delivered the same to defendant company, but said company refused to accept or pay for the same, then your verdict must be for the plaintiff."

At the instance of the defendant the court gave two instructions as follows:

"1. The court instructs the jury that if they find and believe from the evidence that the defendant never gave an order for the lumber mentioned in the evidence, then your verdict must be for the defendant.

"2. The court...