Himmelberger-Harrison Lumber Co. v. Dallas

• Decision Date: 02 April 1912
• Citation: 146 S.W. 95
• Parties: HIMMELBERGER-HARRISON LUMBER CO. v. DALLAS.
• Court: Missouri Court of Appeals

146 S.W. 95

HIMMELBERGER-HARRISON LUMBER CO. v. DALLAS.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

1. CONSPIRACY (§ 14)—JOINT AND SEVERAL LIABILITY.

Where an employé of a lumber company, engaged to scale logs purchased by the company, made an arrangement with sellers of logs to defraud the company by raising the scale of logs delivered, proceeds of the fraud being divided between him and the sellers, all of them are jointly and severally liable to the company for the wrong.

2. ACTION (§ 28) — CONTRACT OR TORT— WAIVER.

A lumber company, defrauded by defendant employé's wrong in conspiring with sellers of logs to overscale them, could waive the tort and hold the defendant on his several liability as for money had and received.

3. MONEY RECEIVED (§ 1)—WHEN REMEDY LIES.

An action for money had and received lies to recover money which, in good conscience, belongs to plaintiff.

4. RELEASE (§ 29)—JOINT TORT-FEASORS— EFFECT.

Satisfaction and express release of a cause of action for joint tort, made by one of the joint tort-feasors, bars recovery against the others.

5. RELEASE (§ 57)—JOINT TORT-FEASORS— DISCHARGE—EVIDENCE.

Where a lumber company's employé participated in an arrangement, whereby the company was defrauded under sales to it, made by the employé's co-conspirators, the fact that one of the sellers repaid to the company the amount he fraudulently received, on the company agreeing not to take legal action against him, does not show a settlement releasing the other joint tort-feasors.

6. DAMAGES (§ 63)—MITIGATION—PAYMENT BY TORT-FEASOR.

Partial satisfaction by one joint tort-feasor can be shown to mitigate damages against another.

Appeal from Circuit Court, Ste. Genevieve County; Henry C. Riley, Judge.

Action by the Himmelberger-Harrison Lumber Company against Samuel Dallas. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Oliver & Oliver and T. B. Whitledge, for appellant. Marshall Arnold, C. J. Stanton, Ward & Collins, and Brown & Gallivan, for respondent.

NORTONI, J.

This is a suit for money had and received. At the conclusion of evidence for plaintiff, the court instructed a verdict for defendant, on the theory that it conclusively appeared plaintiff had accepted full satisfaction from a joint tort-feasor for the tort out of which the cause of action accrued. From this judgment, plaintiff prosecutes the appeal.

Plaintiff is an incorporated company, and owns large tracts of timber land in southeast Missouri, on which it maintains sawmills and manufactures lumber. For about 20 years, defendant was in plaintiff's employ, and a considerable portion of this time he was engaged in measuring timber which plaintiff received from contractors. It appears plaintiff had contracts with three separate persons, Sam Riley, John Mozley, and Martin P. Glasgow, for cutting and hauling logs from the forest on its lands to the sawmills. It was defendant's duty to measure and receive the logs when delivered by the contractors mentioned. The contractors were to be paid by plaintiff for the cutting and hauling of the logs in accordance with the number of feet of probable lumber contained therein. The amount of such lumber and the amount that should be paid by plaintiff to the contractors therefor was ascertained and determined by defendant, who, according to the evidence, "scaled" the logs. The scaling we understand to be a system of measurement employed in such work. For the purpose of defrauding plaintiff, defendant entered into an arrangement with each of the three contractors, above mentioned, whereby he became interested to the extent of one-half of their contracts, and made false measurements of the timber for the benefit of both himself and the contractors. The evidence tends to prove that defendant would raise the scale or measurement of the logs and report fictitious amounts touching the same to plaintiff. On such fictitious measurements, plaintiff paid each of the three contractors in full at the monthly settlements. The amounts thus received by the contractors were divided equally with defendant, who, as before said, became interested to the extent of one-half in the contracts of each. The evidence tends to prove that plaintiff paid out to the three contractors, above mentioned, on defendant's false measurements and reports, several thousand dollars for cutting and hauling timber which it never received. Upon discovering the fraud so practiced upon it by defen...