Hill v. Deaver

• Decision Date: 31 May 1841
• Citation: Hill v. Deaver, 7 Mo. 57 (Mo. 1841)
• Parties: HILL v. DEAVER.
• Court: Missouri Supreme Court

7 Mo. 57

HILL

v.DEAVER.

Supreme Court of Missouri.

May Term, 1841.

NAPTON, J.

Hill sued Deaver in assumpsit for certain lumber furnished the latter, at his special instance and request. The defendant plead the general issue, and went to trial. Verdict was for plaintiff, defendant moved for a new trial, because the verdict was against evidence and against law, and because new testimony had been discovered. The motion was sustained, and a new trial granted. The second trial resulted as the first, in favor of the plaintiff, and defendant again moved for a new trial, on the grounds that the verdict was against law and evidence, against the instructions of the court, and because new testimony had been discovered. An additional motion was filed, asking for a new trial, because the jury had erred in a matter of law in this: “That there was no evidence that defendant ever made any contract in writing with plaintiff for the lumber alleged to have been sold by plaintiff to defendant, nor that there was any part payment for said lumber by defendant, or anything given by way of earnest, or that there was any delivery of said lumber to defendant. And also in this, that there was no evidence that this lumber was ever delivered to any one by the request of the defendant, or by authority of defendant on defendant's account. Yet the jury, in violation of the law concerning contracts and the general law, &c., gave a verdict for plaintiff.”

This motion was also sustained by the court, and a second new trial awarded, to which decision of the court, the plaintiff excepted. Upon this trial the defendant had a verdict and judgment in his favor. The plaintiff moved to set aside the last verdict, and reinstate the second verdict, because the court had improperly granted the second new trial.

The whole testimony is preserved in the bill of exceptions. A detail of it is not necessary to an understanding of the points involved in this case. It seems that Hill, a lumber merchant, was applied to by a house builder, who had undertaken to put up a house for Deaver, and furnish the materials, for lumber; but Hill refused to let the carpenter have the lumber unless upon an order from Deaver. An order for one hundred dollars' worth was procured by the carpenter from Deaver's clerk, which was accordingly complied with by Hill. A second application for additional lumber was made, and the same reply was given by Hill, whereupon the carpenter made a second application to Deaver's clerk for another order which the clerk declined giving in Deaver's absence; but according to the testimony of the carpenter, told him to get what lumber he wanted, and have an order for the whole obtained, when Mr. Deaver should return. Hill's clerk testified to about the same thing; but Deaver's clerk testified that he refused to give any order, but advised the house builder to procure what lumber he wished, and get the proper order from Mr. Deaver on his return. The lumber was furnished, to the value of one hundred and ten dollars. Deaver on his return paid off the order for $100, but refused to pay the account for the remaining $110, and for this the action was brought.

The court instructed the jury that if they should be of opinion that a verbal order was...