Citation Numbers: 141 Ky. 229
Judges: Carroll
Filed Date: 12/16/1910
Status: Precedential
Modified Date: 7/24/2022
Opinion op the Court by
Affirming.
These two appeals will be disposed of together.
In March, 1906, Cunningham, who is a lumber merchant in Louisville ordered from the Marbury Lumber Company, of Alabama,- a large quantity of lumber, specifying in feet the quantity wanted. The lnmber was shipped in carload lots and arrived at Louisville at different times during the spring and early summer of 1906. The Marbury Lumber Company misread and misconstrued the order of Cunningham to call for “pieces”
The Bullock Lumber Company answered, traversing in every particular so much of the petition as sought to make it liable. Cunningham in his answer, among other things, set out that he had accepted and paid for all the lumber ordered by him, and that the overshipment was turned over to the Bullock Lumber Company, which company was accepted by the Marbury Lumber Company as its agent.
After the pleadings had been made up, and some proof taken, the court referred the matter to a commissioner “with instructions to ascertain and charge each defendant with whatever of this lumber he or it shall have received, giving proper credits for payments.” The commissioner reported that neither Cunningham nor the Bullock Lumber Company would make a satisfactory showing as to the quantity of lumber each of them had received, but after ascertaining, as was easy to do, the amount of lumber shipped, and deducting therefrom the amount received by Cunningham, and the amount sold to the parties, the commissioner found that the value of the lumber that the Marbury Lumber Company had not received payment for was $1,048.22. But on account of the failure of Cunningham and 'the Bullock Lumber Company to show how much of this lumber unpaid for each of them had received the commissioner
Prom this judgment the Bullock Lumber Company, as well as the Marbury Lumber Company, appeal, the Bullock Lumber Company insisting that no judgment should have been rendered against it, and the Marbury Lumber Company contending that a judgment for the full amount prayed should have been rendered against Cunningham.
The evidence is very clear upon the .proposition that the Marbury Lumber Company shipped a great deal more lumber than Cunningham ordered and it is also satisfactorily shown that Cunningham paid for all the lumber that he ordered. So that there are only two questions in the case, first, should the Marbury Lumber Company have a judgment against Cunningham for the whole or any part of the lumber, in excess of his order, and second, was it proper to render a judgment against the Bullock Lumber Company.
There can be no doubt that the lumber in dispute was unloaded and stacked in the yard of the Bullock Lumber Company by the direction of Cunningham. Whether the Bullock Lumber Company received it from Cunningham as a mere accommodation to him, or whether it was done for compensation, is not very material, although we may add that the Bullock Lumber Company made a charge against the Marbury Lumber Company for stacking the lumber. It received the lumber in its yard, and was therefore under the duty to the Marbury Lumber Company of exercising ordinary care to take care of it. This it failed to do. Neither the Bullock Lum
Upon the whole case we see no reason for disturbing the finding of the chancellor.
Wherefore, the judgment in each case is affirmed.