McMillan v. Schweitzer

• Decision Date: 31 October 1885
• Citation: 87 Mo. 402
• Parties: MCMILLAN et al., v. SCHWEITZER, Appellant.
• Court: Missouri Supreme Court

87 Mo. 402

MCMILLAN et al.,

v.SCHWEITZER, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

C. W. Thrasher for appellant.

(1) The court below erred in admitting in evidence the portions of the depositions of the witnesses in which it is stated they took possession of the logs. A witness can only state facts--not give an opinion. Laytham v. Agnew, 70 Mo. 48; Rosenheim v. Ins. Co., 33 Mo. 230. (2) When Pettingill failed to pay for the lumber, under the contract in evidence, appellant was at liberty to refuse to further perform the contract by furnishing more logs to be sawed into lumber and sent to Pettingill from the mill. Denny v. Kile, 16 Mo. 450; Turner v. Mellier, 59 Mo. 526.

H. E. Howell for respondents.

(1) The court correctly gave the first declaration of law asked by respondents as to the sale and delivery, Ober v. Carson, 62 Mo. 209; Erwin v. Arthur, 61 Mo. 386; Benj. on Sales [2 Am. Ed.] sec. 334, note t. Though neither actual delivery nor payment of all the purchase money was necessary for plaintiff to recover, as the contract is not a mere executory agreement. Benjamin on Sales [[[[[2 Am. Ed.] sec. 308; Rickey v. Zeppenfeldt, 64 Mo. 277; Woodburn v. Cogdal, 39 Mo. 222. (2) The court below sitting as a jury, under the declarations of law given, found that defendant sold and delivered the logs out of which the lumber in question was made, and there is an abundance of evidence to support that finding, and this court will not disturb it. Crane v. Timberlake, 81 Mo. 431. (3) Delivery being a question of fact as well as of law in this case the depositions of McMillan, Pettingill, Hartnett and others, as to taking possession of the logs, are competent. Wells on Questions of Law and Fact, sec. 184; Glass v. Gelvin, 80 Mo. 297. (4) This was a suit for lumber sawed out of logs which defendant had furnished.

BLACK, J.

This is an action of replevin; the contest is over a quantity of black walnut lumber. The evidence shows that in September, 1881, the defendant sold to one Pettingill three lots of logs, from which this and other lumber was made. Pettingill assigned the contract to plaintiffs, doing business at St. Louis, and they made the advance payment of $500. The logs were some eight miles from Springfield, and, by the contract, they were to be sawed and the lumber hauled at the cost of plaintiffs. Plaintiffs made Pettingill their agent, to have the logs sawed and the lumber hauled. The logs were turned over to the sawyer. He sawed the greater portion of the logs and shipped the lumber to plaintiffs, who paid the drafts of defendant to an amount, they claim, in excess of the lumber shipped. Pettingill was behind with the sawyer for sawing and hauling when the latter sold his claim to the lumber in question to defendant. Plaintiffs tendered to defendant and there was allowed to him the amount due for sawing and hauling the lumber in dispute. Defendant denies that he had any knowledge of the assignment of the contract to plaintiffs.

Under the declarations of law, the court found and there was abundant evidence to support the finding, that defendant sold and delivered the logs from which the lumber in question was made to Pettingill, and that he sold and delivered the same to the plaintiffs. Upon this state of facts the title passed to the plaintiffs. It can make no difference that the amount beyond the advance payment was to be determined by scaling the logs or measuring the lumber. They were to be paid for at thirteen dollars per thousand feet, board measure. Where the property is actually sold and delivered, the matter of measuring, weighing or...