Meridian Lumber Company, Ltd. v. Lowry Lumber Co.
| Decision Date | 04 April 1921 |
| Citation | 229 S.W. 267,207 Mo.App. 41 |
| Parties | MERIDIAN LUMBER COMPANY, LTD., Respondent, v. LOWRY LUMBER COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thomas B Buckner, Judge.
AFFIRMED.
Judgment affirmed.
Davis & Davis and John N. Davis for respondent.
Wm Walter Brady and John N. Swenson for appellant.
This is an action to recover the balance of the purchase price of two carloads of lumber.
Defendant,- then doing business as the Beekman Lumber Company, purchased of plaintiff two carloads of lumber of specified dimensions, at agreed prices, which said lumber was sold March 27, 1918, and delivered to defendant. The price quoted and accepted amounted to a total of $ 857.88 f. o. b. the mills of plaintiff in the State of Louisiana. Of this amount $ 631.28 was paid, and this suit was instituted to collect the balance. The petition charges the facts as above stated.
The answer is a general denial, and by way of further answer and counterclaim,
The testimony which was not disputed shows that the formal order for the lumber directed that the shipment be made to Memphis, Tenn., via the Rock Island Railroad, and that through an error of the plaintiff shipment was made over the Red River & Gulf and the Missouri Pacific railroads. The shipment was delivered at Memphis by the Missouri Pacific Railroad.
Defendant's testimony tends to show that the object in directing the shipment over the Rock Island Railroad was that by so doing a diversion could be had to ultimate destination on a through freight rate. It further developed in the testimony that defendant believed that such an arrangement of diversion could not be made with the Missouri Pacific Railroad. The matter of diversion was taken up by the parties by correspondence and telegraph and it was learned that the diversion could be made by the Missouri Pacific Railroad. In the meantime the lumber was left on the tracks at Memphis until demurrage amounting to $ 220 and $ 6.60 federal tax had accrued. The shipment was then accepted by defendant and paid for, after deducting the amount of $ 226.60, covering the items above indicated, which said deduction is the basis of this action.
The case was tried before the court without the aid of a jury and no declarations of law were asked and none given. The court found for plaintiff and defendant appeals.
The record discloses that at the close of the case the trial judge expressed his opinion of the counterclaim in the following language:
We are of the opinion that this is merely an expression of the court's attitude on the question of defendant's counterclaim and does not reach the dignity of a special finding or declaration of law; and it does not have the effect of a special verdict. [Joblin v. Illinois Surety Company, 193 Mo.App. 132, 182 S.W. 143.] And the verdict is to be treated as general. [Land Company v. Bretz, 125 Mo. 418, 423, 28 S.W. 656.]
This statement of the court was not made at the request of either party and does not fall within the provisions of section 1972, Revised Statutes 1909, and has not the effect of a finding under the statute. [Patterson v. Patterson, 200 Mo. 335, 98 S.W. 613; Lesan Advertising Co. v Castleman, 165 Mo.App. 575, 148 S.W. 433.] It is such a finding and judgment as cannot be reviewed on appeal unless declarations of law had been asked and...
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