Grant Selsor & Sons Lumber Co. v. Wood

872 S.W.2d 150, 1994 Mo. App. LEXIS 444, 1994 WL 80290
CourtMissouri Court of Appeals
DecidedMarch 15, 1994
DocketNo. 18630
StatusPublished
Cited by5 cases

This text of 872 S.W.2d 150 (Grant Selsor & Sons Lumber Co. v. Wood) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grant Selsor & Sons Lumber Co. v. Wood, 872 S.W.2d 150, 1994 Mo. App. LEXIS 444, 1994 WL 80290 (Mo. Ct. App. 1994).

Opinion

CROW, Judge.

Plaintiff, Grant Selsor & Sons Lumber Company, Inc., sued Defendant, Tom L. Wood, alleging he ordered 10,000 pieces of lumber from Plaintiff, specially cut to specific dimensions, at an agreed price of $9,602; that Plaintiff “shipped a majority of the order to Defendant” and later notified him that the remaining portion “was ready for delivery at his direction”; that Defendant, although promising to “send a check,” never paid anything.

Defendant counterclaimed, alleging the lumber received from Plaintiff “was nonconforming as to the specifications agreed upon”; that he incurred expenses in reworking it in an effort to make it conform, plus expenses for storing it, for replacement lumber and freight; that these expenses totaled $18,747.

The trial court heard the case without a jury and entered judgment for $2,400 for Plaintiff on its claim and $7,660 for Defendant on his counterclaim, resulting in a “net judgment” for Defendant of $5,260.

Plaintiff appeals. The first of its two points relied on reads:

“The [trial] court erred as a matter of law in finding for Defendant because the uncontroverted evidence demonstrated that Defendant had repeatedly and unconditionally agreed to pay for the goods over a period of several months, despite his admitted knowledge of the alleged defects in the goods fromjthe earliest delivery, thus giving rise to an account stated. Defendant is similarly equitably estopped to deny the account stated or to assert his counterclaim in the circumstances.”

Our review is governed by Rule 73.01(c)1 and Murphy v. Carron, 536 S.W.2d [152]*15230 (Mo. banc 1976). The trial court’s judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. 536 S.W.2d at 32[1]. Credibility of the witnesses and the weight to be given their testimony was a matter for the trial court, which was free to believe none, part, or all of the testimony of any witness. Herbert v. Hart, 757 S.W.2d 585, 587[1] (Mo. banc 1988). Accordingly, in determining the sufficiency of the evidence, we accept as true the evidence and inferences from it favorable to the judgment and disregard contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654[2] (Mo. banc 1989).

So viewed, the evidence established that Defendant, whose business is manufacturing and distributing wooden stair parts, ordered the lumber for the purpose of turning it into balusters.2 That task was to be performed by Moon Woodturning Company at Pacific, Missouri, a subcontractor of Defendant. Defendant had a contract to sell 9,000 of the balusters to Gerber Industries of St. Peters, Missouri. The other 1,000 were going into Defendant’s inventory.

Defendant ordered the 10,000 pieces in person at Plaintiffs place of business in Springfield, Missouri. He dealt with Harvey “Pat” Patterson, an employee of Plaintiff. Samuel Moon of Moon Woodturning Company was present when Defendant placed the order.

A portion of the order — estimated by Samuel Moon as 2,000 or 3,000 pieces, and by Defendant as 1,200 pieces — was thereafter delivered to Moon Woodturning. Samuel Moon determined that the pieces did not conform with the specifications. Moon explained: “[They] had checks, some bows, some wains, knots. They weren’t uniform in size.” Moon reported this to Defendant by phone.

Defendant immediately phoned Plaintiffs employee, Patterson, who asked whether Defendant could make the pieces conform. Defendant replied he could try. Patterson told Defendant to “do whatever was necessary to make the goods conforming.” Defendant so instructed Samuel Moon.

Moon waited until the next shipment arrived, a week or two later. That shipment, approximately 4,000 to 5,000 pieces, had the same flaws as the first shipment. Moon notified Defendant of this by phone.

Defendant again called Patte2'son. According to Defendant, Patterson said: “Go ahead and try to make it conforming. Do whatever is necessary to try to make the material useful.” Defendant told Samuel Moon to do so.

Moon did his best, but Gerber Industries rejected the balusters because they “didn’t conform to the specifications.”

Defendant then ordered lumber from another supplier, Glen Oak Lumber & Milling, Inc., a Wisconsin company, to fill the Gerber order. Moon Woodturning made balusters from it, acceptable to Gerber. Defendant paid Glen Oak and Moon Woodturning, plus freight charges for hauling the lumber from the former to the latter.

In support of its theory that the evidence demonstrated an account stated (inferably for $9,602), Plaintiff relies on testimony of its president, Irvin Selsor. However, as noted supra, the trial court was not obliged to believe that testimony, Herbert, 757 S.W.2d at 587[1], and inasmuch as it is contrary to the trial court’s judgment, we disregard it. T.B.G., 772 S.W.2d at 654[2].

Plaintiff also relies on testimony by Defendant, both at trial and on deposition, to support the “account stated” theory. Defendant’s testimony at trial included this:

“Q. You had phone conferences with Bob Selsor and Irvin Selsor about the payment on this account; haven’t you?
A. I have received phone calls from them.
Q. Okay. You spoke with them on the phone. You told both of them that you’d send them a check.
A. Correct.
Q. And you didn’t tell them — at least on those occasions when you said you’d [153]*153send them a check and you’d pay for it, you didn’t tell them that there was any problem with timeliness and you didn’t tell them that there was any problem with conformity. Is that correct?
A. I had to — That is correct.”

Defendant’s deposition, taken April 20, 1991, included this:

“Q. Do you remember receiving a telephone call from me?
A. Yes, I do.
Q. Do you recall what was discussed during our conversation?
A. You’d asked me about the invoice due, if I remember correctly.
Q. Do you recall my asking you when we could expect payment for the order?
A. Uh-huh. (Witness moves head up and down.)
Q. What was your response?
A. My response was you’d be receiving a check within the next week to ten days. But at that point, also, I was still expecting conformity of the order.
Q. Did you communicate to me that there was a defect in the goods? ... At that time.
A. Not to the best of my recollection, I didn’t.
Q. Did you use the words that you were expecting conformity of the order when you talked with me?
A. Not that I recall. You were calling about when you would receive money. I was answering your question at that point.”

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872 S.W.2d 150, 1994 Mo. App. LEXIS 444, 1994 WL 80290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grant-selsor-sons-lumber-co-v-wood-moctapp-1994.