East Shore Lumber Co. v. Healy-Tibbits Construction Co.

HALL, J.

Plaintiff brought suit to recover the sum of

$1,626.89 for

lumber sold and delivered to defendant by plaintiff, and recovered judgment for the full amount prayed for. Defendant appealed to this court from the judgment, and the only points urged for a reversal arise out of the rulings of the court in sustaining objections to two questions asked by appellant of each of two witnesses called by appellant.

The evidence shows without conflict that the defendant was . engaged upon four building jobs in Oakland, and that one Reeder was its foreman and building superintendent, and, to quote from the appellant’s brief, “had authority to order lumber for these various jobs.” The plaintiff proved that the lumber sued for had all been bought from plaintiff by Mr. Reeder acting for the

defendant;

that the lumber had been delivered from time to time as ordered by Mr. Reeder, and receipts given therefor. The lumber was delivered at the various jobs as ordered by Reeder. Some of it also was delivered to the Pacific Lumber Company to be cut up in accordance with the orders of defendant, and two loads were delivered at a house in Berkeley, which belonged to Mr. Reeder, but which plaintiff did not know was not being constructed by appellant for Mr. Reeder. After the lumber had been delivered to Reeder’s house, however, Reeder himself paid to plaintiff on account thereof $31.97, which was credited on appellant’s bill, leaving the amount sued for as the balance unpaid.

Appellant, on its own behalf, placed Mr. Reeder on the witness-stand, and he also testified to the purchase and delivery of the lumber, and that plaintiff’s account was in all respects correct. That the several jobs being done by defendant at the time were a concrete building at the foot of Fifth avenue for the Western Power Company, a pumping plant for the city of Oakland, a fire-engine house for the city of Oakland and a building for the Western Pacific Company. He further testified that he received all the lumber for the

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defendant called for by the bills of plaintiff, and that it went into the various jobs, including, however, his own house, but that he had paid $31.97 to plaintiff on account of the lumber used in his residence, and had the same credited to defendant’s account, and in addition had paid appellant on account of the material that went into his house $212, which he testified was largely in excess of the value of such materials.