Swindell Bros. v. Gilbert

Page, J., delivered the opinion of the Court. This is an action of assumpsit, brought by the appellees to recover for certain lumber alleged to have been sold to the appellants. In the original writ, the firm of Davis and Brother were joined as defendants, but before the case went to the jury they were dismissed on motion of the appellees. The judgment being against the appellants they have appealed.

There were five exceptions; four to the admission of evidence, and one from the refusal of the Court to grant the first, second, fifth and seventh prayers asked for by the appellants. The main question in the case was whether any evidence had gone to the jury sufficient to show there was a sale and delivery of the lumber set out in the declaration; and the Court was asked to instruct that there was no such evidence, and that therefore the verdict must be for the appellants, and incidental to that it was also contended by the appellants, and the contention is embodied in their seventh prayer, and in their first, second and third exceptions, that certain conversation between Frank R. Davis and the Gilberts, should not be received because there was no evidence of the agency or authority of Davis to speak or act for the appellants. These will be considered in their order. The proof shows that the appellants, being about to construct additional stories on their warehouse, on plans prepared by Davis & Bro. their architects, entered into a contract with one Flaggs a builder to erect the same.

A copy of the contract is in the record, and it is in form and substance the usual one between builders or contractors and owner. It seems to be clear that the appellees furnished the lumber, and that all so furnished was used by the appellants and went into their building. The contract for furnishing the lumber was made in the name of Flaggs, but the contention of the appellees was that it was in fact sold directly to the appellants, through the agency of the Davises, and that Flaggs was not in fact the real ⁴⁰¹ contractor but a mere sham. To maintain this, they offered evidence tending to show that Flaggs was without means, and therefore not in a position to claim or expect an extensive credit from anyone.

There was also evidence tending to show that Gilbert Bros, made a bid to Flaggs for the lumber, but this bid was not accepted; later on however, according to the evidence of Gilbert, Henry R. Davis asked Gilbert, “Why don’t you figure on the job.” Witness said, “we can’t sell Flaggs that quantity of lumber;” Davis then said, “take Flaggs out and you figure for Swindell to pay the bill;” and witness said, “he would;” “now this is to be charged to Swindell Bros.;” “No,” Davis replied, “you charge it to Flaggs and get your orders and we will pay the bill.” “And on those conditions only,” proceeded the witness, “did we furnish the lumber, that Swindell Bros, were to,pay the bill.” There was also evidence that this bill was added to on the order of Davis on the 14th of April, 1902, without the knowledge and consent of Flaggs. Flaggs also testified that he first gave the job for the lumber to Thomas Matthews, but afterwards turned him down and gave it to the Gilberts. That he had met Gilbert in Davis’ office, and at that time “Gilbert cut his original bid,” but he Flaggs, “can’t tell how Gilbert got there, but however I got the lumber from Gilbert to build the building with, after he had shaded his price in some way or other.” There was also evidence tending to show that Swindell Bros, carried out the arrangements made with Davis as to payments. The checks were made out to Flaggs, but he was required to endorse them before they passed from the hands of the Swindells,who then delivered them to the Gilberts, without their ever having been in the possession of Flaggs, who would have been entitled to them according to his contract with the Swindells, unless the latter had ignored him.

In addition to this, it was contended that the Swindells had recognized their liability to the Gilberts, when on demand for the payment of the $5,000 note to Flaggs, they paid $2,500 to them, without consultation with, or the knowledge of, Flaggs. Moreover one ef the Swindells testifies, that “he had to have Flaggs’ consent, but ⁴⁰² if Dayis had told him to draw a check that would insure. Gilbert getting the money and