Stimson Mill Co. v. Hughes Manufacturing Co.

ALLEN, P. J.

Appeal by plaintiff from a judgment in favor of defendant, and from an order denying a new trial.

The action is to recover for building material alleged to have been sold and delivered to defendant at an agreed price. It is alleged in the complaint that the material was delivered in lots on various dates between November 5, 1904, and January, 1905. That upon the delivery of each lot an itemized account was furnished defendant showing the amount and price, and that the same was sold by plaintiff to defendant. That at various dates after the final delivery an account was rendered by plaintiff to defendant, showing the transaction in detail, which defendant retained and never made objection thereto until May, 1905; and it is alleged that by reason thereof said account became stated and defendant had agreed and assented thereto and is accordingly indebted. Nonpayment is alleged. The second count in the complaint is for goods sold and delivered. An issue was raised by the answer as to each and all of the allegations of the complaint. The court found in favor of defendant upon all the issues.

It appears from the record that prior to September, 1903, Hughes Brothers were engaged in conducting a planing mill in Los Angeles; that about the date last mentioned the defendant corporation was organized and took over the business, one of the Hughes brothers remaining as general man

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ager of defendant, while the other brother became president. The evidence in relation to the transactions and the contract and agreement with reference to the delivery of the lumber is very conflicting, it being asserted by witnesses for plaintiff that there was an express contract on the part of Grant Hughes, the general manager of the defendant, to buy and pay for the lumber, and he agreed that it might be delivered to one Coffey, a contractor engaged in building certain schoolhouses ; that before delivery Grant Hughes agreed for the defendant to pay for such lumber upon a representation to him by plaintiff that it would not deal with Coffey. Upon the other hand, defendant’s witnesses testified that no such agreement or contract was made or entered into, and that defendant had no knowledge that plaintiff objected to selling to

Coffey;