Smith Shook & Lumber Co. v. Fred Perkins

Assumpsit. Trial by jury, verdict for the plaintiffs. Their evidence tended to prove that one Patten, the defendant’s father-in-law, spoke to them in March, 1917, about buying a lot of lumber belonging to the defendant, and that they offered him twenty dollars a thousand for it delivered to their mill and subsequently wrote the defendant to that effect. They could not agree, however, on the details of the trade and the matter dropped until the following November, when Patten asked them if they still wanted the lumber. They said they did, and the next week he.delivered two loads and refused to deliver any more because their measure was unsatisfactory. Transferred from the May term, 1919, of the superior court by Branch, J., on the defendant’s exception to the denial of his motion for a directed verdict.

The evidence warrants the jury’s finding that Patten sold the lumber in question to the plaintiffs. The only question, therefore, for this court is whether the evidence warrants a finding that Patten was authorized to sell it. The evidence relevant to that issue all comes from him and from the defendant, and is in substance that the defendant asked him sometime in October, 1917, if he thought the plaintiffs still wanted the lumber and told him that if they did he could haul them one or two loads and that if the measure they gave was not the same as the marks on the loads to let him know. It is clear that this evidence will not sustain a finding that Patten was authorized to make the trade the jury found he made with the plaintiffs.