P. J. Lawrence Lumber Co. v. Thomas & Proetz Lumber Co.

ON MOTION FOR REHEARING. This action was brought to recover the purchase price of a carload of lumber. The judgment below was for the plaintiff, and the defendant has appealed. 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 *Page 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. *Page 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, *Page 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 *Page 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, 106 N.Y.S. 1099; Weber Co. v. Hearn, 49 App. Div. N.Y. 214; Mudge v. Oliver, 1 Allen, 74; Cement v. British American Assurance Co., 141 Mass. l.c. 303; Stoddard v. Ham, 129 Mass. 385; Alberta Cent. Land Corp. v. Ford, 17 West L.R. 241, Atlantic 1057.] It follows that the judgment should be affirmed. The Commissioner so recommends.