Roush v. Hussey Lumber Co.

• Decision Date: 20 May 1930
• Docket Number: 4708
• Citation: 27 S.W.2d 1033
• Parties: ROUSH v. HUSSEY LUMBER CO.
• Court: Missouri Court of Appeals

27 S.W.2d 1033

ROUSH v. HUSSEY LUMBER CO.

No. 4708

Court of Appeals of Missouri, Springfield

May 20, 1930

Appeal from Circuit Court, Shannon County; Will H. D. Green, Judge.

“ Not to be officially published.”

Action by O. F. Roush against the Hussey Lumber Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

S. A Cunningham, of Eminence, for appellant.

Barton & Moberly, of Houston, and John P. Moberly, of Eminence, for respondent.

OPINION

BAILEY, J.

This is an action to recover a balance alleged to be due on a parol contract for manufacturing and sawing certain ties and lumber. The petition alleges that in June, 1928, the defendant corporation, through its agent, by parol contract, contracted with plaintiff to saw and manufacture lumber, ties, and timber at mill yards in Shannon county, Mo.; that it was agreed in said contract that defendant would accept and receive such lumber, ties, and timber as were sawed and manufactured and pay for same; that plaintiff began the performance of same in June, 1928, and continued thereon until February 26, 1929; and that during this period defendant received and paid for said lumber, ties, etc., according to the agreement; that toward the latter part of said period, defendant failed to pay for such lumber, ties, and timber, and there became a balance due of $1,048.87.

The answer admitted the parol contract, but set up as a defense, among other things, that defendant had overpaid plaintiff $637.50 on oak lumber and $35.42 on stacking lumber, and that there was due plaintiff only $432.87, which was duly tendered. The trial was had to a jury on the issues raised and resulted in a verdict and judgment for plaintiff in the sum of $1,040.90, from which judgment defendant has appealed.

It is stated in defendant’s brief that there is but one proposition to be seriously considered on this appeal, and that is upon the question of overpayment under a mistake of fact. Upon this question, the evidence on the part of defendant tended to show that Andy Young had been employed by defendant to look after their business in buying ties and lumber, and he also was authorized to measure up and grade ties and lumber, being given authority to write drafts upon defendant for the amount found to be due. The lumber being stacked after it was measured, the estimates were, of course, not exact. Mr Young testified as to the manner in which the estimates were made, and from his testimony it may be said that plaintiff was overpaid. There was also evidence from other scalers employed by defendant to the effect that plaintiff had been overpaid. On the other hand, there was some evidence on the part of plaintiff tending to prove the contrary.

He testified that when Mr. Young estimated there was so much lumber in a stack and paid him, he figured that was a final settlement, and that they never...