Pine v. Am. Eng'g

• Decision Date: 11 November 1924
• Docket Number: No. 5052.,5052.
• Citation: 97 W.Va. 471
• Court: West Virginia Supreme Court
• Parties: Pine and Cypress Manufacturing Company v. American Engineering and Construction Company

97 W.Va. 471

Pine and Cypress Manufacturing Company

v.American Engineering and Construction Company

No. 5052.

Supreme Court of Appeals of West Virginia.

Submitted October 21, 1924.

Decided November 11, 1924.

1. Sales Lumber Consigned to Shipper Remains His Property Until Delivered to Another by Him or at His Direction.

Where lumber is shipped by a dealer, and is consigned to said dealer at a stated point, it remains the property of the dealer until it is delivered to another by the dealer or is so delivered by his direction. (p. 474).

2. Trover and Conversion 'Contractor Tahing Possession of Lumber Without Authority from Owner Held Guilty of Conversion; Defendant Liable for Market Value at Time of Conversion, With Interest.

Wihere a car load of lumber is unloaded and taken into possession by a contractor without any authority from the owner to do so, and the lumber is held by said contractor and treated as his own property for three months, by reason whereof the owner is deprived of his property, these acts of ownership constitute a conversion of said lumber by said contractor, and he will be liable in an action of assumpsit for the market value of the lumber at the time of the conversion, together with interest thereon from said time. (p. 474).

3. Same "Conversion" Defined.

Any distinct act of dominion wrongfully exerted over the property of another, and in denial of his rights, or inconsistent therewith, may be treated as a conversion and it is not necessary that the wrongdoer apply the property to his own use. And when such conversion is proved the plaintiff la entitled to recover irrespective of good or bad faith, care or negligence, knowledge or ignorance. (p. 474).

Error to Circuit Court, Kanawha County.

Action by the Pine & Cypress Manufacturing Company against the American Engineering & Construction Company. Judgment for defendant, and plaintiff brings error.

Reversed.

Morton, Mohler & Peters, for plaintiff in error.

Lon II. Kelly, for defendant in error.

McGinnis, Judge:

This is an action of trespass on the case in assumpsit, brought by the plaintiff, Pine & Cypress Lumber Company, against the defendant, American Engineering & Construction Company, to recover from it the price of a car load of lumber valued at $2,000.00. Upon the plea of non-assumpsit the case was tried and a verdict rendered for the defendant. Motion was made by the plaintiff to set the verdict aside and grant it a new trial, which motion the lower court overruled, to which ruling the plaintiff excepted, and judgment thereon entered in accordance with the verdict. The case comes here on a writ of error.

The material facts in the case are these: Robert Mankin and Luther Mankin were building: contractors, engaged in the business as partners under the firm name of R. Mankin & Company. During the year of 1920, and for some time prior thereto, the said firm was engaged in the construction of some houses on Coal River for the Hazy-Eagle Collieries Company, at a place known as Hazy, which point is some four miles up Coal River from the station at Mont Coal, and some time in the month of April, 1920, they purchased from the Yellow Pine Lumber Company, a business concern located in the city of Charleston, "West Virginia, and engaged in the business of buying and selling building materials, a car load of 1x4 No. 2 common pine flooring, at the price of $58.00 per thousand feet, to be delivered at Mont Coal, West Virginia. The Yellow Pine Lumber Company purchased from the plaintiff the flooring required to fill the order of R. Mankin & Company. The plaintiff on May 7th, 1920, shipped a car load of lumber in Rutland car No. 6471, containing 20, 624 feet of 1x4 No. 2 common pine flooring, via the branch line of the C. & O. Ry. running up Coal River. The bill of lading showed that the car was shipped "To the order of the Pine & Cypress Manufacturing Company, Mont Coal. Notify Hazy-Eagle Collieries Company." This car load of lumber was not received by the consignee and' after diligent search and inquiry had been made for the car from the time it should have arrived until July 24th, 1920, the Yellow Pine Lumber Company became convinced that it could not make delivery of the lumber and being so requested by the Mankin Company, it released the Mankin Company from further liability on their contract, and the plaintiff in turn released the Yellow Pine Lumber Company on its contract.

At the time R. Mankin & Company were engaged in the construction of the houses for the Hazy-Eagle Collieries Company, the defendant was also engaged in the building of houses for the Glogora Coal Company about one mile above Mont Coal. There were spur tracks at each of these two points and they were about three miles apart, each being on the said branch line, and these two contractors received and un- loaded car load lots of materials from these two spur tracks, the Mankin Company from the spur track at Hazy,...