Stirneman v. Smith

• Decision Date: 23 February 1900
• Docket Number: 1,244.
• Citation: 100 F. 600
• Parties: STIRNEMAN v. SMITH et al.
• Court: U.S. Court of Appeals — Eighth Circuit

100 F. 600

STIRNEMAN v. SMITH et al.

No. 1,244.

United States Court of Appeals, Eighth Circuit.

February 23, 1900

Edward Lees (M. B. Webber, on the brief), for plaintiff in error.

John M Rees, for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

Levi J Smith and George T. Mortland, the defendants in error, who are co-partners under the name of L. J. Smith & Co., and several other persons, in the fall of the year 1897 consigned to Jacob Stirneman, the plaintiff in error, about 3,735 barrels of apples of various kinds, to be sold by him on commission; the proceeds to be duly accounted for when sold. Stirneman was at the time a commission merchant residing and doing business at Winona, Minn., to which place the apples were consigned. The consignors appear to have been residents of Calhoun county, Ill., where the fruit was grown, and from whence it was shipped to Winona. The proceeds received from the shipment not proving satisfactory, the several consignors other than L. J. Smith &amp Co. assigned their claims to the latter firm, which thereupon brought an action against Stirneman to recover from him the total sum claimed to be due to the several consignees. The complaint was so drawn as to permit of a recovery on either one of two theories: First, on the ground that the consignee had been negligent in the performance of his duty to his principals, by reason of which fact he had neither obtained for the apples what they were reasonably worth in the market, nor what might have been obtained for them by the exercise of proper diligence on his part; and, second, on the ground that the consignee had not accounted to his principals for all the money which he had actually received for the apples, by reason of which fact he was still indebted to them in a large sum, amounting to something more than $5,000. The defendant below replied to the complaint by alleging, in substance, that on the receipt of the apples in question it had been found necessary to rehandle and repack nearly 600 barrels thereof; that many of the apples, when repacked, were found to be rotten and unfit for the market; that he had incurred large expenses in repacking the fruit, and had then sold it to the best advantage; and that, after paying such expenses and freight bills and his own commission, he had fully and honestly accounted to his principals for the balance in his hands. The case appears to have been tried to a jury upon both of the theories above outlined; resulting, after the introduction of much conflicting testimony, in a judgment for the plaintiffs below in the sum of $2,470.15.

It is first assigned for error that in the course of the trial the court erroneously permitted a witness for the plaintiffs to testify, in substance, that on March 2, 1898, he went into the cellar underneath the defendant's place of business in Winona, and there saw a large quantity of apples which not only corresponded in species with those that had been shipped to him by the several consignors, but were packed in barrels on which the names or the initials of two of the consignors had been stenciled, and that the fruit was then in good condition, and was worth from $3 to $3.75 per barrel. It is said that the admission of this testimony was improper, because the incident occurred several weeks after the defendant below claimed to have disposed of all of the apples that had been shipped to him, and that the identification of the fruit as a part of that which had been received by him from the several consignors was incomplete. We are unable, however, to attach any importance to this suggestion. The testimony in question had a marked tendency to show that the defendant had a considerable quantity of the apples in his possession some weeks after he claimed to have sold all of them and to have accounted for the proceeds, and that the fruit was even then in good condition, and worth fully as much as the plaintiffs claimed that it was worth. If the testimony in question had been rejected the trial court would have committed a palpable error.

It is next insisted that the trial court erred in admitting in evidence certain depositions as rebuttal testimony. It is claimed that the depositions were inadmissible for two reasons: First, because the evidence therein contained should have been offered in chief, and was not competent as...