Heart of America Lumber Co. v. Wyatt Lumber Co.
| Decision Date | 06 March 1933 |
| Citation | 59 S.W.2d 800,227 Mo.App. 794 |
| Parties | HEART OF AMERICA LUMBER CO., RESPONDENT, v. WYATT LUMBER CO., LTD., APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Clarence A Burney, Judge.
AFFIRMED.
Judgment affirmed.
Goodwin Creason for respondent.
George P. Norton for appellant.
The plaintiff, respondent herein, a Missouri corporation with principal place of business in Kansas City, Missouri, filed in the Circuit Court of Jackson County, Missouri, its petition at law on July 23, 1930, and filed at the same time an affidavit, suing out writ of attachment without bond, and attached money in the hands of Burd Johnson-Miles Lumber Company, a corporation of Kansas City, Missouri, which money was owing to Wyatt Lumber Company, Ltd., a foreign corporation, appellant herein.
The action is one for damages alleged as growing out of the appellant's alleged failure to deliver ten (10) cars of hardwood lumber, alleged to have been purchased by the respondent from the appellant.
The appellant made entry of appearance and attachment was thereby, dissolved. The appellant filed a counterclaim along with its answer in the lower court. The counterclaim asked damages, consequent to money being tied up by the writ of attachment.
The above cause was assigned to Division 6 of the Circuit Court of Jackson County, Missouri.
The case was tried before HON. CLARENCE A. BURNEY, Judge, without a jury. Judgment awarding eight hundred and eighty dollars ($ 880) damages to the respondent and against the appellant on its counterclaim was had and entered on December 23, 1931.
A motion for a new trial was duly filed and overruled by the court and an affidavit for an appeal duly filed and appeal granted, and in due course, cause was sent to this court.
The facts, as gathered from the record in this case, shows that early in January, 1929, negotiations were had between the appellant and the respondent, touching purchase of lumber by respondent from appellant to be used in river construction work on the Missouri river.
It can be inferred from the evidence, that the respondent had written to the appellant on the 26th day of January, 1929 concerning the purchase of lumber. In response to the letter of the 26th, the appellant sent to the respondent a telegram in words and figures as follows to-wit:
The evidence discloses, that after the respondent received the above telegram, there continued negotiations between the parties wherein there were communications passed and it is shown that A. M. Miles, who was in the employ of Turner Lumber Investment Company, was requested by the respondent and upon the respondent's request visited the office of the appellant and, according to the testimony offered by the respondent, did for and on behalf of the respondent leave an order at the appellant's office in words and figures as follows to-wit:
"Stock if surfaced to be 7/8" Hit or Miss SIS or S2S or S4S, at least 3 3/4 wide. No Brash or Brittle stock can be used. Government work for mattress work. Ship one or two cars at once; if satisfactory will release entire order. If O. K. we can give you more if you desire.
Miles testifies that the above order is in his handwriting. He further testifies, that a Mr. Colvin, who seemed to be in charge of the appellant's office, told him that, "We have wired the Heart of America Lumber Company for ten (10) cars." Miles further testifies, that Colvin told him that, "We have specifications for mattress crates and mattress lumber and we want to get out ten (10) cars of it; that he wrote up the order for ten (10) cars; that he would take more if the stock was available; that Mr. Colvin thanked him for the order."
There is evidence, upon the part of the appellant, contradictory of the above.
The appellant presented evidence to the effect, that Colvin only had authority to sell soft lumber, and that Colvin had no authority to sell hard lumber.
Mr. Colvin in his deposition testifies; that he never proposed to sell to Mr. Miles; that he never proposed to accept any kind of an order from Mr. Miles; that Mr. Miles left a memorandum of an order on Mr. Perkins's desk; that he told Mr. Miles that Mr. Perkins was the only one, who would sell hardwood lumber or pass upon any order; that Mr. Miles said he would like to leave an order for Mr. Perkins to look over, when he returned, and he could take one car or two cars, or none at all, if agreeable to him.
It appears from the evidence, that Miles's visit to the appellant's office was on January 31, 1929. The evidence shows, that upon February 5, 1925, the following letter was sent by the respondent to the appellant.
The evidence discloses, that the appellant never shipped any lumber to the respondent.
There is evidence to the effect, that by reason of the appellant's failure to ship, that the respondent was compelled to go upon the market and buy at an advanced price of $ 4 per thousand. There is also evidence to the effect, that a car of lumber of the kind in controversy, consisted of 22,000 feet.
The appellant's motion for a new trial and the appellant's assignment of errors are somewhat general and indefinite in character. The respondent in its brief, contends that the appellant's motion for a new trial is too indefinite and general to advise the trial court of its errors, and that therefore, this court should not consider any alleged errors of the trial court.
The courts of Missouri are very liberal, touching matters of specification of error, especially where the cause is tried by the court sitting as a jury.
The policy of the courts of this State, touching specifications of error in motions for a new trial, especially in civil cases, is very liberal. [Wampler v. Railroad, 269 Mo. 464.]
In view of the rule as declared in the above case, we hold that the respondent's contention is not tenable in this case.
The appellant alleges error of the trial court in permitting evidence over the objection of the appellant. The particular evidence, the admission of...
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