Lefere v. Krohn , 127 Miss. 305 ( 1921 )

Holden, J.,

delivered the opinion of the court.'

The. appellant, Lefere, sued the appellees to recover the value of certain timber logs claimed to have been delivered to and converted by the appellees to their own use, under an agreement that the appellant was to deliver the logs to the appellees, who were to saw them into lumber for the appellant, and that appellant was to pay the appellees five dollars per thousand feet for sawing said lumber when delivered to the appellant. After- the conclusion of the testimony, the court granted a peremptory instruction for the defendant, from which judgment this appeal is prosecuted. '

The only question presented for our decision is whether or not the proof offered by the appellant is sufficient to show the conversion of the logs or the lumber sawed out of the logs by the appellees. -We have examined the record carefully and do not hesitate to say that the testimony offered by the appellant was ample to make out a case against the appellees for some amount, to be determined hy a jury.

• It is true there is a conflict in the testimony; .but if the testimony of the appellant is true — and we see no reason for saying it is unbelievable — then the appellant would be entitled to recover for the value of the converted property, less the five dollars per thousand feet sawing cost.

The appellant, Lefere, testified to the contract he had Avith the appellees in which it was agreed that he would deliver the logs and the appellees would saw them into suitable lumber for appellant, which they would together ship to the New Orleans market by water; that several thousand feet of this lumber was sawed but was not delivered to the appellant, nor accounted for when demand was made for it; that appellees admitted they had sawed the lumber and disposed of it to other parties, and agreed they would pay appellant for it later on. This was a declaration or admission by the appellees against their interest, and was competent proof corroborating the testimony of the appellant on the main issue as to the agreement and delivery of the logs by the appellant to the ap-pellees. The denial of this admission by the appellees merely presented a conflict to be submitted to a jury. There is also a conflict in the testimony as to the number of logs delivered and the amount of lumber sawed out of them, but certainly the evidence in the case is sufficient to show that logs were delivered, sawed into lumber, and converted by the appellees to their .own use; these issues should have gone to the jury instead of granting a peremptory instruction for the defendants below.

For the error in granting the peremptory instruction, the judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.