State ex rel. Holland v. Knapp

• Decision Date: 27 March 1883
• Citation: State ex rel. Holland v. Knapp, 13 Mo.App. 467 (Mo. App. 1883)
• Court: Missouri Court of Appeals
• Parties: STATE OF MISSOURI, TO THE USE OF HOLLAND ET AL., Respondents, v. KNAPP, STOUT & CO. COMPANY, Appellant.

13 Mo.App. 467

STATE OF MISSOURI, TO THE USE OF HOLLAND ET AL., Respondents,

v.KNAPP, STOUT & CO. COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 27, 1883.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

G. M. STEWART, for the appellant.

E. T. FARISH, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

Knapp, Stout & Co., as creditors of Joy Brothers & Co., levied an attachment upon certain lumber in the yard of the latter firm, which had already been selected from the stock of Joy Brothers & Co. by Holland & Co., in part payment of an indebtedness of Joy Brothers & Co. to Holland & Co. Knapp, Stout & Co. retained the lumber after it was claimed by Holland & Co., and the present action is upon the bond given by Knapp, Stout & Co. under the statute. The cause was tried by the court without a jury, and the finding and judgment were for plaintiff.

The testimony tended to show, that Joy Brothers & Co., who were lumber dealers, owed Holland & Co. for lumber, $400, represented by their note not yet due. Holland & Co., believing Joy Brothers to be in embarrassed circumstances, made to them a proposition to take lumber for the debt. It was agreed that Holland & Co. should take for the debt all the poplar lumber that Joy Brothers had on hand, and the balance in pine ceiling, all at the prices in Joy Brothers' price list. Mr. Wood, the agent of Holland & Co., then went into the wood-yard of Joy Brothers with their book-keeper, and selected seventeen thousand six hundred and eighty feet of poplar lumber, worth $263.90. This lumber was in bundles, piled one on the top of the other, in half a dozen piles, in a shed. Each bundle had marks showing the number of feet it contained, and the lumber was counted to Wood by those marks. No other measurement was made for Wood than that which had been already made. The amount was then figured up by the book-keeper, and Wood left with the understanding that he took this poplar lumber; and that the remainder of the lumber should be selected next morning. The lumber selected was to be hauled away by Wood, but it was then too late to haul away the lumber conveniently that evening; and, when Wood went there next morning, defendants had already attached.

On this state of facts, the trial court gave judgment for the value of the poplar wood as shown by the testimony.

The defendants asked the following declaration of law, which was refused:--

“If the court, sitting as a jury, find from the testimony that on or about December 11, 1878, the firm of Joy Brothers & Co. were indebted to Nelson, Holland & Co. in the sum of about $400, and that on said day Joy Brothers & Co. agreed with Nelson, Holland & Co. to sell them lumber in payment of said indebtedness, and in pursuance of said agreement the said Joy Brothers & Co. did, on said day, show the said Nelson, Holland and Co. a part of the lumber which they proposed to sell them in payment of said debt, and the dimensions and price per thousand feet of the same were ascertained and agreed upon, but the aggregate amount was not then determined, but was insufficient to pay the whole of said debt, and that it was further agreed upon between said Joy Brothers & Co. and Nelson, Holland & Co., at said time, that after they had mutually determined the value of the lumber so shown and counted, at the prices so agreed upon by them, that Joy Brothers & Co. would and should sell them other lumber to be thereafter selected and measured, sufficient in amount to pay the residue of said debt, and that the value of the lumber, and dimensions and price per...