Montgomery & Mullen Lumber Co. v. Ocean Park Scenic Railway Co.

The defendant’s appeal is from an order denying its motion for a new trial. The action was brought to recover an alleged balance due to the plaintiff for lumber sold and delivered to the defendant. It was found by the court that the plaintiff sold and delivered to defendant lumber of the value of $2,875.15, of which sum two thousand dollars was paid by the defendant. Appellant claims that the evidence is insufficient to support the finding that any lumber was delivered exceeding in value the amount paid. The controversy between the parties relates to the quantity of lumber delivered, and not to the prices charged with respect to the various items.

C. W. Pinkerton, the manager of plaintiff’s business, testified to the sale of lumber by plaintiff to the defendant. Certain books were produced in court which he said contained the original charges. Prom those books a bill of particulars was compiled, which, prior to the trial, was served upon the defendant and which was used in connection with Pinkerton’s testimony. He said: “Our office system is such that when we send an order to the yards to be loaded for delivery, we have working in the yards men that we call salesmen, they take…