ON MOTION FOR REHEARING. Opinion filed May 29, 1923. Appellant, in its motion for rehearing, contends that the record herein is utterly devoid of any evidence that any of the lumber was used by it after it received actual notice that it belonged to respondent and, therefore, complains of the statement, *Page 265 contained in the opinion herein, which reads: "The defendant accepted and retained all the lumber and used at least a portion thereof after it received actual notice that it belonged to the plaintiff."
The record herein contains the following testimony given at the trial: Mr. Thomas, president of the Thomas Proetz Lumber Company, while on the witness stand, made the following admission: "I think the Thomas Proetz Lumber Company received the lumber mentioned in plaintiff's Exhibit A. I will admit that they received it and used it."
The car of lumber in question was delivered to the appellant on March 31, 1920. There was a difference between the shipper's invoice and appellant's inspection; and the car was held intact pending receipt of reply from respondent's Mill connection. This dispute was settled on April 10, 1920.
Walter Wiese, an employee of the defendant, and in charge of the transaction in question, testified:
"In the ordinary course of business we resell the lumber we buy, lots of the time from the car. Some of this lumber was sold as soon as we got orders from the Lawrence Lumber Company that it was O.K., and probably some of it was put in pile. . . . It was held intact; it was sold on the track there. . . . It was unloaded when we made this report on March 31st, and was being held intact for a report from the mill connection. This lumber wasn't sold right out of the car it arrived in, but it was sold in the usual course of business. . . . All I can say is, it was used on orders and some put in piles."
Mr. Edward Wiese, vice president of Thomas Proetz Lumber Company, was asked the following question and gave the following answer.
"Q. Mr. Wiese, what became of this cypress lumber? A. It was used in the regular process of business. Some of it was used by us prior to the time we learned the P.J. Lawrence Lumber Company was incorporated. I do not know how much of it." *Page 266
Considering the above evidence in the light most favorable to respondent and admitting as true every fact and inference that may be reasonably deduced from the evidence, we think the statement complained of is fully borne out by the evidence adduced.
However, the record discloses that the appellant addressed and mailed the order for the carload of lumber to the respondent; that there was no evidence adduced tending to show that the respondent knew, at the time it delivered the lumber to the appellant, that appellant intended to deal with P.J. Lawrence and not with it; and that appellant accepted and retained all the lumber and at no time made any offer to return it.
In view of this evidence we deem it immaterial whether or not the appellant disposed of the lumber before or after it had knowledge that it belonged to the respondent. The plea that all of the lumber was disposed of by the appellant before it had such knowledge is no defense to this action.
The Commissioner recommends that the motion for rehearing be overruled.