Sage v. Shepard & Morse Lumber Co.

In this case we deem an opinion unnecessary. Under the pleadings plaintiffs on the trial will be compelled to show the delivery of the various items of lumber for which the action is brought. It is not denied that the account set out in the first cause of action in the complaint consists of 147 items, and in the second 295 items. Plaintiffs on the trial must establish, before resting, each of the items, showing the delivery of the lumber and the price at which the same was sold or the value thereof.

It will not be practicable under the pleadings to try the question of the power of Abbott and of defendant’s knowledge of the limitations of that power separately. The question as to whether defendant had notice as to the power of Abbott, plaintiff’s salesman, is not, properly, an issue in the action. The evidence given in that regard will bear on the real issue, the price at which the lumber was sold or whether any price was agreed upon.

We do not think that difficult questions of law are involved in the case. The questions to.be tried are of fact.

As to the second cause of action in the complaint, plaintiffs having waived the tort, it is to be deemed a cause of action on contract and referable.

Had defendant, in the answer, admitted the delivery to it of the several items of lumber set out in the complaint averring that it purchased said lumber at a specified price, which had been paid, it may be that a reference should not have been directed. As it is, plaintiffs, as a part of their case must show, before resting, the delivery of over four hundred items of lumber and the price or value thereof.

We think the order should be affirmed with costs,

Mayham, P. J., concurs, Herrick, J., not acting.