Creelman Lumber Co. v. DeLisle , 107 Mo. App. 615 ( 1904 )

BLAND, P. J.

(after stating the facts). — 1. The certificate of the Secretary of State authorizing plaintiff to do business in this State was obtained by plaintiff before the trial of the cause. Defendant objected to the introduction of any testimony by the plaintiff, on the ground that the certificate of the Secretary of State was not issued until after the suit was commenced. This objection was untenable, under the ruling of the Supreme Court in the case of Carson-Rand Co. v. Stern, 129 Mo. 381, 31 S. W. 772, and was properly overruled.

2. The following facts were proven by plaintiff and not controverted by defendant: First, that the lumber in question was stacked by DeLisle Bros. & Boon. Second, that it was estimated by plaintiff’s inspector and five dollars per thousand feet advanced on the estimate by plaintiff. In this state of the evidence, it was a question of law to be determined by the court from a proper construction of the contract as to which of the parties to the contract owned or had the right to the possession of the lumber at the time the demand was made by plaintiff on DeLisle Bros. & Boon for its delivery. Spalding v. Taylor, 1 Mo. App. 34; Miller v. Dunlap, 22 Mo. App. 97; The St. Louis Gaslight Co. v. Ins. Co., 33 Mo. App. l. c. 385; Stewart v. Sparksman, 75 Mo. App. 106; Crawley v. Mullins, 48 Mo. 517. But both parties by their instructions submitted the construction of the contract and the right of possession thereunder of the lumber in question to the jury and are for this reason in no position to complain that the court did not interpret the contract for the jury, and are concluded by the construction the jury gave to the contract. The instruction given for the defendant was a counterpart of that asked and given by the plaintiff,- and the error in the charge to the jury as to the law of the ease is not available to the plaintiff on this appeal. Cady v. Coates, 101 Mo. App. l. c. 152, 74 S. W. 424, and cases cited.

3. A mass of irrelevant and incompetent testimony was admitted,. over the objection of plaintiff, which tended to show a violation of the contract by plaintiff in having made an improper inspection of lumber other than that in controversy, by tearing down and scattering other piles of lumber, that had been put up by DeLisle Bros. & Boon, and leaving them down whereby the lumber became doty and worthless, thus entailing a loss upon the firm. No counterclaim for any damages caused by a violation of the contract on the part of the plaintiff was set up in the answer, nor was any specific violation of the contract alleged therein, hence there was no issue raised by the pleadings under which this character of evidence was relevant. The result, we think, shows that this evidence was prejudicial to plaintiff, wherefore the judgment is reversed and the cause remanded.

Reyburn and Goode, JJ.,‘ concur.