National Lumber Co. v. Hodiamont Bank, 21741.
| Decision Date | 03 May 1932 |
| Docket Number | No. 21741.,21741. |
| Citation | 49 S.W.2d 223 |
| Parties | NATIONAL LUMBER CO. v. HODIAMONT BANK et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; John T. Fitzsimmons, Judge.
"Not to be officially published."
Interpleader suit by the National Lumber Company against the Hodiamont Bank and the Eagle Lumber Company. From a judgment dismissing plaintiff's bill, he appeals.
Affirmed.
Harry A. Frank, of St. Louis, for appellant.
Samuel B. McPheeters and Wilder Lucas, both of St. Louis, for respondent Eagle Lumber Co.
Stout & Spencer, of St. Louis, for respondent Hodiamont Bank.
This is an interpleader suit. Plaintiff admits that he holds $986.70, the net amount due for a carload of lumber, after payment of freight charges, and alleges that the two defendants, the Hodiamont Bank, which claims under an assigned invoice for said lumber, and the Eagle Lumber Company, which shipped the lumber, are each making claim for the amount, and prays that the defendants be required to interplead for said fund. Upon the trial, the court gave judgment dismissing plaintiff's bill. Plaintiff appeals.
The evidence shows that W. M. Klenk, doing business as the W. M. Klenk Lumber Company, was engaged in the lumber business in University City, Mo. He was an independent lumber broker and was so known to the trade. He was also a lumber dealer engaged in buying and selling lumber on his own account. On June 14, 1928, plaintiff, which is a lumber dealer in the city of St. Louis, gave Klenk an oral order for a carload of lumber. Nothing was mentioned at the time as to whether or not Klenk was representing any one in the transaction, or was acting in his own behalf. Plaintiff alleges in its petition that at the time it gave the order for the lumber it did not know whether Klenk was acting in his own behalf or as agent for some other lumber company. It was shown to be the custom for a lumber dealer, in territory where independent brokers operate, to place an order with the broker, who in turn offers it to various mills, and when the mill has completed the sale to the customer the broker is entitled to his commission for his connection with the matter. In conformity with this custom, Klenk sent a written order to defendant Eagle Lumber Company, at Portland, Or., for the lumber ordered by plaintiff. Klenk's order to the Eagle Lumber Company is dated June 14, 1928. It is addressed to the Eagle Lumber Company, and directs the shipment to plaintiff of the lumber, which is particularly described in the body of the order, and also directs that the order be acknowledged to plaintiff, and that plaintiff be invoiced for same. It also stated: "Commission to us $1 per M." The Eagle Lumber Company had previously done considerable business with Klenk on a commission basis, but had never sold him any lumber. He was merely known to the Eagle Lumber Company as an independent lumber broker. R. A. Stevenson, sales manager for the Eagle Lumber Company, testified that when dealing with independent lumber brokers the sale is never made to the broker, and the broker's connection is completed when the mill accepts and fills the order. On June 19, 1928, the Eagle Lumber Company acknowledged receipt, directly to plaintiff, of the order placed on behalf of plaintiff by Klenk. This acknowledgment, so far as pertinent here, is as follows:
Then follows a particular description of the lumber ordered, with the prices of the various items specified, aggregating $1,508.25; the description and prices of the lumber being the same as the description and prices contained in the order sent forward by Klenk.
Following the description of the lumber, with the prices, this appears:
This acknowledgment was sent forward on June 19, 1928, and was received by plaintiff, in due course of mail, four days afterwards. A copy of the acknowledgment was sent to Klenk with the additional notation thereon as follows: "$1 per M to Klenk."
On August 22, 1928, the lumber in question was shipped by the Eagle Lumber Company to plaintiff, and a straight nonnegotiable bill of lading was issued by the Southern Pacific Railroad Company to the Eagle Lumber Company, naming it as the consignor and the plaintiff as the consignee. This bill of lading was sent the same day to plaintiff by the Eagle Lumber Company with its invoice for the lumber thus shipped. The invoice, so far as pertinent here, is as follows:
Then follows a description of the lumber sold, with prices charged for the same, totaling $1,384.14.
At the bottom of the invoice appears the following:
This invoice and the bill of lading were received by plaintiff in due course of mail, on August 27, 1928.
On August 30, 1928, three days after the receipt of the invoice and bill of lading from the Eagle Lumber Company, plaintiff accepted an assignment to the Hodiamont Bank of an invoice drawn by W. M. Klenk Lumber Company. This invoice called for $1,723.25, whereas that of the Eagle Lumber Company was only for $1,384.14. The assignment of the Klenk invoice, which was drawn as though he were selling the lumber on his own account to plaintiff, reads as follows:
The acceptance of the assignment is as follows:
...
To continue reading
Request your trial
-
Barr v. Snyder
...Ed.), sec. 1326, p. 913; Hartsook v. Chrisman, 90 S.W. 116; Wm. A. Ross Const. Co. v. Chiles, 344 Mo. 1084, 130 S.W.2d 524; National Lumber Co. v. Bank, 49 S.W.2d 223. And because the escrow agent is not absolutely disinterested. Bell Storage Co. v. Harrison, 180 S.E. 320, 164 Va. 278; 30 A......
-
Kerite Co. v. Alpha Employment Agency, Inc.
...Inc., 155 Fla. 538, 20 So.2d 795; Miller v. Massachusetts Mutual Life Ins. Co., 183 Md. 19, 33, 36 A.2d 517; National Lumber Co. v. Hodiamont Bank, 49 S.W.2d 223 (Mo.Ct.App.). In Fisher v. Stevens Coal Co., 136 Pa.Super. 394, 396-397, 7 A.2d 573, it was held that where it appeared that the ......
- Perry v. J. A. Kreis & Sons