253 S.W. 783 | Mo. Ct. App. | 1923
Lead Opinion
The petition is in the usual form. The answer contains a general denial, and, in addition, pleads that on February 16, 1917, the defendant ordered from P.J. Lawrence, an individual doing business as P.J. Lawrence Lumber Company, four carloads of lumber; that the said P.J. Lawrence agreed to sell and deliver said *261 four carloads of lumber to the defendant at St. Louis, Mo., at an agreed price; that said P.J. Lawrence failed to deliver said lumber and that by reason of such failure the defendant was damaged in the sum of forty-one hundred and fifty-five dollars; that, induced by the desire to set-off this debt due defendant by P.J. Lawrence, defendant, on March 24, 1920, ordered from said P.J. Lawrence, doing business as P.J. Lawrence Lumber Company, the carload of lumber described in the petition and received and accepted the same, believing that the same was in fulfillment of defendant's order mailed to said P.J. Lawrence, on March 24, 1920; that defendant at no time ordered any lumber from plaintiff corporation, and at no time agreed to pay it for any lumber.
The answer further pleads that if the plaintiff received the order and furnished the lumber, as alleged in the petition, it fraudulently received the said order and fraudulently caused the defendant to accept the said lumber by representing itself to be the P.J. Lawrence, with whom defendant had previously done business as P.J. Lawrence Lumber Company, by knowingly using the same name and the same stationery and the same offices and the same signature with which the aforesaid P.J. Lawrence had previously done business with defendant as P.J. Lawrence Lumber Company; and that plaintiff corporation gave defendant no notice that the said lumber was furnished by the plaintiff corporation, until after the said lumber had been lost in identity and disposed of so that it could not be returned by defendant. The answer concluded with a prayer that the defendant be dismissed without day with its costs. The reply put in issue the new matter set up in the answer.
The facts in the case are briefly as follows: The plaintiff is and has been a corporation since December, 1919; and is located in the city of St. Louis. On March 24, 1920, the defendant addressed and mailed an order to the plaintiff for the carload of lumber in question. *262 Pursuant to this order, the plaintiff delivered the lumber to defendant on March 31, 1920. The lumber was unloaded from the car by the defendant and piled up in its yard and was thereafter used by it in the regular course of its business.
On April 10, 1920, the defendant addressed a letter to the plaintiff in which they requested payment of an alleged balance due it of thirty hundred and forty-two dollars and sixteen cents, made up as follows:
April 10, our Invoice ........................... $4155.00 Cr. April 10, Cr. due you on car 85046 B. O. ...... $1112.84 ________ $3042.16
In reply to this letter, the plaintiff on April 12, 1920, wrote to the defendant as follows:
"We are in receipt of your somewhat mysterious statement and letter of the 10th and beg to state that we do not know anything about the P.J. Lawrence Lumber Company, Inc., holding any orders whatsoever for your account. We notice that your statement is dated February 16, 1917, this was before we were ever in business, as our charter was given to us by the State to do business as the P.J. Lawrence Lumber Company on October 1, 1919.
"Therefore, it is necessary for us to return this statement to you and ask you for payment in full, less freight allowance and discount, on car #80046.
Yours very truly, "P.J. LAWRENCE LUMBER COMPANY."
The defendant admitted, at the trial, that it disposed of part of the lumber, in its regular course of business, after it received the letter dated April 12, 1920.
Mr. Wiese, who represented the defendant in the purchase of the lumber, testified that he thought or supposed when the contract of purchase was made, because of defendant's prior dealing with P.J. Lawrence, that he was purchasing the lumber from P.J. Lawrence; and that the order was given to enable the defendant, *263 in case the lumber was delivered, to offset a claim the defendant had against P.J. Lawrence for non-fulfillment of an old order given him by defendant in February, 1917.
There was evidence adduced tending to show that the defendant has an unliquidated claim for damages against P.J. Lawrence, which claim is bottomed on his failure to deliver four carloads of lumber purchased from him by the defendant in February, 1917, No notice of this claim was given to the plaintiff, or to P.J. Lawrence, prior to the time defendant made the purchase of the lumber in question.
There was no evidence adduced tending to show that the mistake, on the part of the defendant, as to the identity of the plaintiff was in any manner induced by the plaintiff. No representations were made by it, during the negotiations leading up to the purchase of the lumber, that the lumber belonged to P.J. Lawrence. So far as the evidence discloses the defendant claims to have been mislead, as to the identity of the plaintiff, solely because of its said dealings with P.J. Lawrence in 1917, at which time he was conducting a commission lumber business, in St. Louis, Mo., under the name of P.J. Lawrence Lumber Company.
The assigned errors here go to the giving of an instruction for the plaintiff, the refusal of instructions requested by the defendant, and that the judgment is not supported by any evidence in the case.
We find it unnecessary to discuss the assigned errors, since we hold that on the undisputed facts the judgment is for the right party.
The corporate existence of the plaintiff not having been denied under oath was admitted. The order for the lumber was addressed to the plaintiff who accepted same and made the shipment in perfect good faith. The defendant accepted and retained all the lumber and used at least a portion thereof after it received actual notice that it belonged to the plaintiff. The defendant did not disclose to the plaintiff its alleged intention to deal with *264 P.J. Lawrence and made no inquiry as to plaintiff's identity. There was no fraud, or false representation or pretense on the part of the plaintiff that it was selling the lumber for P.J. Lawrence. The fact that the defendant thought it was dealing with P.J. Lawrence was a mistake on its part, of which plaintiff had no knowledge or suspicion; and said mistake cannot be a bar to plaintiff's right to recover in this suit.
This is not a case where the mistake arises through the other's fault, or where he falsely represents himself to be another, or accepts an offer which is meant for another, but is a case where the defendant deals with the plaintiff without any inquiry as to his identity, and in consequence of the dealing plaintiff's position is changed.
Under the evidence in this case the defendant is estopped from setting up that it supposed it was dealing with another person. [Pizzutielle v. Graham,
It follows that the judgment should be affirmed. The Commissioner so recommends.
Addendum
The opinion of BRUERE, C., is adopted as the opinion of the court. The judgment of the circuit court of the city of St. Louis is accordingly affirmed. Allen, P.J., and Becker Daues,JJ., concur.
Addendum
The record herein contains the following testimony given at the trial: Mr. Thomas, president of the Thomas Proetz Lumber Company, while on the witness stand, made the following admission: "I think the Thomas Proetz Lumber Company received the lumber mentioned in plaintiff's Exhibit A. I will admit that they received it and used it."
The car of lumber in question was delivered to the appellant on March 31, 1920. There was a difference between the shipper's invoice and appellant's inspection; and the car was held intact pending receipt of reply from respondent's Mill connection. This dispute was settled on April 10, 1920.
Walter Wiese, an employee of the defendant, and in charge of the transaction in question, testified:
"In the ordinary course of business we resell the lumber we buy, lots of the time from the car. Some of this lumber was sold as soon as we got orders from the Lawrence Lumber Company that it was O.K., and probably some of it was put in pile. . . . It was held intact; it was sold on the track there. . . . It was unloaded when we made this report on March 31st, and was being held intact for a report from the mill connection. This lumber wasn't sold right out of the car it arrived in, but it was sold in the usual course of business. . . . All I can say is, it was used on orders and some put in piles."
Mr. Edward Wiese, vice president of Thomas Proetz Lumber Company, was asked the following question and gave the following answer.
"Q. Mr. Wiese, what became of this cypress lumber? A. It was used in the regular process of business. Some of it was used by us prior to the time we learned the P.J. Lawrence Lumber Company was incorporated. I do not know how much of it." *266
Considering the above evidence in the light most favorable to respondent and admitting as true every fact and inference that may be reasonably deduced from the evidence, we think the statement complained of is fully borne out by the evidence adduced.
However, the record discloses that the appellant addressed and mailed the order for the carload of lumber to the respondent; that there was no evidence adduced tending to show that the respondent knew, at the time it delivered the lumber to the appellant, that appellant intended to deal with P.J. Lawrence and not with it; and that appellant accepted and retained all the lumber and at no time made any offer to return it.
In view of this evidence we deem it immaterial whether or not the appellant disposed of the lumber before or after it had knowledge that it belonged to the respondent. The plea that all of the lumber was disposed of by the appellant before it had such knowledge is no defense to this action.
The Commissioner recommends that the motion for rehearing be overruled.
Addendum
The foregoing opinion of BRUERE, C., is adopted as the opinion of the court; and the motion for rehearing is overruled. Allen,P.J., and Becker and Daues, JJ., concur.