L. Bucki & Son Lumber Co. v. Atlantic Lumber Co.

Citation116 F. 1
Decision Date20 May 1902
Docket Number1,130.
PartiesL. BUCKI & SON LUMBER CO. v. ATLANTIC LUMBER CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

H Bisbee and Geo. C. Bedell, for appellant.

R. H Liggett, for appellee.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

The bill shows that the parties to this suit prior to April 1 1893, entered into a contract whereby the appellee, the Atlantic Lumber Company, bound itself to deliver to the appellant, the L. Bucki & Son Lumber Company, 2,000,000 feet board measure, of good, merchantable pine logs each month for a period of eight years, with a guaranty that the logs should average 3 1/2 logs to the thousand feet, board measure. About April, 1893, the parties commenced work under this contract, and continued to work under it until October 1, 1897. On that day the appellee brought an action at law against the appellant to recover a balance claimed to be due on account of the contract price for logs delivered for four months, to wit, June, July, August, and September next preceding the 1st day of October, 1897, in which action it alleged that the balance due was $8,609.78. The actio was commenced in the state circuit court, but was duly removed to the circuit court of the United States for the Southern district of Florida. To this action the appellant filed, among other pleas, four several pleas of set-off fo damages sustained by the appellant by reason of the breaches of the warranty and guaranty contained in the contract. These pleas separately laid breaches for the months, respectively, of June, July, August, and September, and charged that the logs delivered in those months averages less than 3 1/2 logs per thousand feet, board measure, according to the rules which the contract had made the standard, and charged further that the value of the logs actually delivered, according to the established and admitted basis of valuation at Jacksonville, where the logs were delivered was very much less than the contract price; that without adjustment thereof from month to month the appellant had actually paid during the months of June, July, and the first half of August for the amount, in board measure of the logs actually delivered, at the contract price, which was greatly more than the value of the logs so delivered during that time. The bill charges that the amount of the deliveries during each of the periods and the exact average of the size and the exact value of the logs actually delivered, was shown by undisputed evidence, the result of which was particularly and minutely set out in the bill, and the exact amount of the difference between the value of the logs actually delivered and of the price actually paid was fully and minutely disclosed. The bill shows that on the trial of the action the court, at the request of the appellant, instructed the jury that the difference between the contract price of the logs that should have been delivered and the market price of the logs that were actually delivered was the legal measure and rule of damages to be allowed and awarded to the defendant in the action under these pleas of set-off; and the court submitted to the jury on the trial the question of the amount of damages and set-off to be allowed the appellant under its pleas in respect to, and only in respect to, the logs delivered between the 14th of August and the 1st of October, 1897, which instruction the jury obeyed, and under which instruction the jury allowed the set-off claimed for the period between the 14th of August and the 1st of October, 1897, and were expressly required not to allow the claim for the period up to the 15th of August, on the ground that it was established by the evidence at the trial that the appellant had, prior to the bringing of the action, without objection, and with knowledge of the size of the logs actually delivered, paid and settled with the appellee for all logs it had delivered between the 31st of May and the 15th of August, 1897. The proper exception was take and reserved. Such further proceedings were had that on the 7th day of May, 1898; the jury returned its verdict against the appellant for the sum of $8,988.37, on which the court on the same day rendered its judgment, without any fault, negligence or want of diligence on the part of the appellant. The appellant moved for a new trial, on which motion, at the hearing thereof, the court entered the following order:

'This cause coming on to be heard upon a motion for a new trial, and having been fully heard and considered, and it appearing that possibly an error was committed in instructing the jury that payments and settlements had between the parties for the logs up to the 15th day of August, 1897, was final, although it might appear that the size of the logs for that time was smaller than the average guarantied, and that, according to the custom of the market, the price of such logs in the market, on account of such smaller size was $583.07 less than the amount paid, it is ordered that, upon the remitting of the said sum of $583.07 from said judgment by the plaintiff, that said motion for a new trial be denied.'

The subsequent paragraphs of the bill show an abortive attempt to have this judgment reviewed on a writ of error, failure to accomplish which is shown in its minutest details, with a strenuous allegation that the appellant had been deprived of its rights and moneys and property as set out, without any negligence, want of diligence, care, or skill on its part or on the part of its attorneys in the premises, and against the legal contentions, defenses, and pleadings of the appellant and its attorneys in the action at law, and against the undisputed and conceded evidence in that action; that on the basis of the deliveries actually made, and the rule of law adopted by the trial court, and made the basis of its instruction to the jury, as far as it allowed the jury to consider it at all under the appellant's pleas, does, by mathematical calculation, exactly show that, in order to correct the error of withdrawing the consideration of these pleas during the period before the 15th of August, not the sum of $583.07 results, but the sum of $4,553.90, which is the amount for which the appellant should have been allowed credit under its pleas for the months of June, July, and the first half of the month of August; that the rule of law as to the finding of damages in the particular case exhibited by the pleadings and proof in that action was definite and correctly settled, and, as between the parties to the suit, became res adjudicata, and that the mistake committed by the trial judge, on the hearing of the motion for a new trial, in arriving at the amount which, on the basis of the undisputed facts and the correct rule of law adopted, was a mistake of fact, and a miscalculation, not subject to be reviewed on a writ of error, and not concluded by any action had on such writ; that the result is that the appellee has obtained and now holds a large sum of money, indicated, which it is unconscionable for it to hold, and against equity for the appellant to be deprived of; that therefore the suit is brought to obtain credit for that amount on the judgment rendered in the action at law. The later paragraphs in the bill anticipate the defenses of the appellee, and reply to them. The appellee submitted a demurrer specifying seven grounds, the first of which was, 'Because the said bill does not set up such facts as entitle the complainant to any relief in a court of equity against this defendant. ' On the hearing of the demurrer the circuit court 'ordered that said demurrer be, and the same is hereby, sustained, upon the first ground alleged therein, and, it further appearing that the insufficiency of the bill is such that it cannot be cured by amendment, it is ordered that it be dismissed. ' The appellant contends that the bill, in the first 31 paragraphs, alleges facts admitted by demurrer, saying that the appellant has been deprived of the set-off without its fault, and that the judgment is against equity and conscience, and ought not to be enforced without such credit; and it assigns that the court erred in dismissing the bill because the demurrer was not well taken, and that the bill stated a proper case for relief. It contends that the central point in this case is that, on the motion for a new trial of the action at law, the court in calculating the amount to be remitted from the verdict upon the undisputed evidence, by mistake ordered an amount to be remitted too small by about $4,000; that the correct rule of law is that the amount due the appellant was the difference between the contract price of $7.25 per thousand feet, board measure, actually paid for the logs, and the market price of logs of the size actually delivered between the date of May 31 and August 15, 1897; that such was the rule of law declared by the circuit court in its order on the motion for a new trial, as well as in its instruction to the jury in respect to the logs delivered between August 14 and October 1, 1897, as the bill explicitly avers; that the bill alleges the exact quantity of feet of logs delivered; that it alleges the payment of $7.15 per thousand, board measure, for all logs delivered between May 31 and August 14, 1897, the custom of the market as to the market price of logs, and the basis of $7 per thousand for logs averaging three logs per thousand; and that the bill alleges the items in dollars and cents, and the aggregate difference to be $4,553.90. The appellant further contends that the bill alleges facts establishing beyond the possibility of denial that the appellant exhausted in the trial of the action at law every means known to procedure to have and obtain the set-off of $4,553.90,...

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3 cases
  • Pond v. Babcock
    • United States
    • United States State Supreme Court of Idaho
    • 26 Febrero 1931
    ......Variel, 144 Cal. 463, 103 Am. St. 91, 77 P. 988; L. Bucki & Son Lumber Co. v. Atlantic. Lbr. Co., 116 F. 1, at 11, 53 C. C. A. 513; ......
  • L. Bucki & Son Lumber Co. v. Atlantic Lumber Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 10 Marzo 1903
  • L. Bucki & Son Lumber Co. v. Atlantic Lumber Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 1 Marzo 1904
    ...us on appeal at our November term, 1901, and our opinions disposing of the case on that appeal, announced May 20, 1902, are reported in 116 F. 1. averments of the bill in this case are briefly, but sufficiently, set out in the opinion of this court on the former appeal. Therein at also appe......

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