152 P. 1184 | Utah | 1915
This action was brought to recover on an alleged balance claimed to be due for merchandise, consisting principally of lumber and other building material, amounting to $365, and alleged to have been sold and delivered to the defendant between the 24th of December, 1896, and the 10th of June, 1903. The material was sold by McMaster & Forsgren, partners, in the lumber and hardware business at Brigham City. McMaster and his son, and later McMaster alone, succeeded to the business and to the account, who sued on it. He died
“A bill of exceptions shall in all cases be prepared, settled, signed, and filed within ninety days after the entry of judgment, or after notice of the same if the action were tried without a jury, or after notice of the determination of a motion for a new trial.”
The bill was served within the time enlarged by the court, and within ninety days from notice of the entry of the judgment, but was not settled, signed, or filed within that time. For this reason it is asked to be stricken. On authority of Olson v. O. S. L. R. Co., 24 Utah, 460, 68 Pac. 148, the motion is denied.
“Q. You filed a lien against the mining company, did you not, for these goods along about 1902? A. Possibly. Q. And in that lien you stated that the goods went up to that mining company, didn’t you? A. Well, that was our knowledge. Q. And you stated it?- A. Yes, sir. Q. You satisfied that lien, didn’t you, afterwards? A. I did, to satisfy Mr. Baker. ’ ’
He further testified that the mining company “did lots of trading with him in the early 90’s.”
In April, 1896, the defendant wrote McMaster and Fors-gren this letter:
“Ogden, Utah, April 26, -6.
“McMaster & Forsgren, Brigham City, Utah — Gentlemen: May I ask why it is that you or your clerks persist in making out bills of lumber and other goods to me personally, though as you well know, all the material is ordered by me, or on my order, for and on acct. of the Consolidated Mining & Smelting Company, and that as general manager I give these orders? Be so kind as to make out all bills to the above company, and if you have an account on your books in my name have it changed to the name of above co. Yours truly, H. C. Baker, Geni. Mngr. C. M. & S. Co.”
That the letter was received in due course of mail by Mc-Master & Forsgren is not disputed. All that plaintiff’s counsel say with respect to it is that the letter was irrelevant, and ought not to have been admitted because it was written more than a year prior to the sale of the first item of goods
McMaster and others, connected with the business of Mc-Master & Forsgren, testified that the material was sold and delivered to the defendant. But the testimony was given in this wise: They were shown entries in book accounts of McMaster'& Forsgren, and were asked by plaintiff’s counsel in whose handwriting the entries were. They answered that they were in their handwriting, or that of the bookkeeper. Then their attention was called to a particular entry, and after testifying that they made it, or that it was made by the bookkeeper, were asked, “Did you make the sale?” or, “Did you conduct the transaction?” They answered: “Yes, sir.” Then, “Q. To whom did you deliver the material? A. To Mr. Baker. ’ ’ But in each instance, each witness, on cross-examination, testified that the material was- not, in person, sold or delivered to the defendant, but that it was sold and delivered to some one in his employ, or to some one on orders from him. Each of them testified that he had no personal knowledge of any sale or delivery made in person to the defendant, and that the goods were sold and delivered to him, because of the entries so appearing in the account books of McMaster & Forsgren. When asked why the account.was carried on .the ledger and on the “itemized sheets” in the name of the mining company, McMaster testified that the name of the company was added at the request of the defendant after the goods were sold and delivered. McMaster further testified that:
“Baker came to me and made arrangements to get the stuff and sent for it as he needed it. ”
It is not shown that Baker had any one in his employ, or that he was doing or conducting any business whatever on his own behalf, nor were the contents of the orders shown. The witnesses but testified that goods were sold on “orders from Baker.” The plaintiff was asked, but was unable, to produce
The judgment of the court below is therefore reversed, and the case remanded for a new trial. Cost to the appellant.