Central Coal & Coke Co. v. Niemeyer Lumber Co.

Bunn, C. J. This is a suit by the plaintiff, the Niemeyer Lumber Company, against the defendant, the Central Coal & Coke Company, for the sum of six hundred and ninety dollars, the price of a lot of cross-ties. The defendant answered, denying that the plaintiff had ever sold and delivered to it any cross-ties as alleged, aud also that it owed plaintiff said sum, or any other sum. Trial and judgment for plaintiff for said sum and interest at 6 per cent, per annum from the 20th March, 1894, and defendant appealed. The only material question in this case is one of fact, whether or not the ties were sold to defendant or to its agent, and the refusal of the trial court to admit certain testimony offered by defendant bearing upon that question. The testimony of A. J. Niemeyer, on the pai't of the plaintiff, was to the effect that witness was the president of the plaintiff company during the years 1893, 1894 and 1895, and, while acting as such in the management of its business, he casually met the manager of the defendant company, one W. L. Whitaker, on the streets of the city of St. Louis, and proposed to sell his company a lot of cross-ties which .the plaintiff had for sale along the Shreveport branch of the Cotton Belt Railroad in Arkansas and Louisiana; that Whitaker informed him that one H. L. Landes, of New Lewisville, Arkansas, was the agent of or represented his company in that locality, and referred him (Niemeyer) to him (the said Landes); that but few words were spoken between them, and that he did not pretend to remember the language used by Whitaker on the occasion, but from what he said he was impressed with the idea that he represented Landes as the agent of his company for the purchase of cross-ties in that locality. Whitaker’s testimony was to the same effect, as to the meeting and the nature thereof; but, as to what was said by him, he denies that he represented Landes to be the agent of his company, but that, on the contrary, he told Niemeyer that he could not purchase his cross-ties, because he, on the part of his company, had entered into a written contract theretofore with Landes, obligating it not to purchase any cross-ties in that locality except from Landes. The written contract was exhibited with the testimony of one Weatherby, a witness for the defendant, and identified by him. This contract shows, not that Landes was the agent of or represented the defendant company, but that he (Landes) had thereby agreed with the defendant company “that he would, within one year from the 1st of November, 1893, the date thereof, furnish and deliver to it 150,000 oak cross-ties on said branch road, free of all liens and incumbrances, the delivery to be made at the rate of 12,500 per month, and subject to inspection, and to furnish receipts in full from the timber owners, haulers and tie-makers with whom Landes should contract, and said receipts to be furnished on or before the 20th of each month, and to show payment in full for all labor performed or material for all ties delivered during the preceding month.” Then follows the prices to be paid for the ties, and when to be paid. The cross-ties purchased of Landes, to be delivered to the defendant company, for the month of February, 1894, which included the ties for which this suit was brought, were purchased by Landes, and proper receipts obtained therefor by him from the owners, as he reported to Whitaker by letter dated March 13, 1894, but Whitaker declined to honor his draft at the time for the price thereof, because Landes had not sent him or his company the receipts as provided in the contract, and, without the draft being paid, Landes was not able or did not pay for the cross-ties he had purchased from the owners thereof. Thereupon Landes went to St. Louis, and delivered the receipts of Niemeyer Lumber Company, dated “Waldo, Ark., February 28, 1894,” and of others. This was March 27, 1894, and Whitaker appears then to have paid Landes for the February estimate. Landes, from some cause, failed to pay Niemeyer Lumber Company, notwithstanding its releases, etc., and this suit was brought to charge the defendant company with the amount. Niemeyer and Whitaker were the only witnesses to their conversation on the streets of St. Louis concerning this matter, and they differ widely as to their versions of it. The defendant offered to prove by a competent witness — the said Weatherby, who was its timber agent in the locality named — that on several occasions during the months of November and December, 1893, and of January and February, 1894, he had mailed, postage prepaid, printed circulars to the plaintiff company at Waldo, Arkansas, which showed the nature of the contract between defendant and Landes, and the relation existing between them. Landes says that, to the best of his recollection, he purchased the ties from plaintiff about January, 1894. The object of the testimony offered was to show that plaintiff had notice of the nature of the contract between defendant and Landes before it sold the ties to the latter. This, we think, was germane to the issue involved, and should have been admitted, as throwing light upon the question concerning which the testimony was quite indefinite and uncertain, to say the most of it. If the plaintiff had notice, before it sold to Landes, that he was purchasing really on his own account, or had such information as to put it on inquiry as’ to that fact, the giving of such notice to it was certainly material, under the circumstances of this case, since the evidence of Landes’ alleged agency was somewhat uncertain, according to Niemeyer’s own testimony. There were no exceptions to the instructions, which are properly before us, and the objection to the manner by which the jury finally made up their verdict under the direction of the court need not be here discussed. For the refusal of the court to admit the testimony offered, the judgment is reversed, and the cause remanded, with direction to proceed not inconsistently herewith.