Indianapolis Cabinet Co. v. Herrmann
| Decision Date | 09 June 1893 |
| Citation | 7 Ind.App. 462,34 N.E. 579 |
| Parties | INDIANAPOLIS CABINET CO. v. HERRMANN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; D. W. Howe, Judge.
Action on a contract by Henry Herrmann against the Indianapolis Cabinet Company. Judgment for plaintiff, and defendant appeals. Affirmed.
A. C. Harris, for appellant. A. Seidensticker and Duncan & Smith, for appellee.
This action was instituted by appellee against appellant to recover damages for the alleged breach of a contract, the terms of which will be hereinafter stated. The issues joined were submitted to a jury for trial, but after the evidence was heard the jury, by agreement of the parties, was dismissed, and a special finding of the facts was made by the court; and, on the conclusions of law thereon stated, judgment was rendered in favor of appellee for $426.65. Each party excepted to the conclusions of law, and appellee appealed to the general term, where errors were properly assigned by each of the parties. In general term, the judgment of the special term was reversed, with instructions to restate the conclusions of law, and to render judgment for appellee in the sum of $1,836.01.
The principal question involved in this appeal is as to what is the proper construction of the agreement upon which suit is brought, which is as follows:
The court also found that for many years prior to said date the appellee had been engaged in the business of manufacturing and dealing in all kinds of lumber used in making furniture; and that appellant had for many years been engaged in manufacturing stock or cut whitewood used in the manufacture of furniture. That appellee had been accustomed to buy, and appellant to sell, cut whitewood in car load lots. That “in the lumber trade the term ‘car load,’ as applied to whitewood, does not mean any specific number of feet or quantity, nor does it appear from the evidence how many hundred or thousand feet of whitewood are contained in an average car load, further than may be inferred from the fact that the smallest cars will contain about 35,000 feet of whitewood, and the largest cars about 60,000 feet of such whitewood.” That in November, 1887, appellant shipped to appellee a car load of whitewood, after which the letter above set out was written, and the order accepted. That on December 28, 1887, appellee wrote appellant that in reliance on such acceptance he had entered into a large contract for furniture, and for them to hurry “first car load with all possible speed.” That on January 30, 1888, appellant wrote: “Will forward the first car some time next week, and will make shipments promptly thereafter.” That, on February 2d, appellee wrote again: “I rely on your promise to forward the first car some time next week, and the following shipments promptly thereafter; and, in consequence, I will not order the stock elsewhere.” That, on February 11th, appellant did ship a car load of cut whitewood, of 40,000 feet. That the same was duly inspected in New York, and 29 per cent. of the whitewood contained in said shipment did not fulfill the requirements of the contract in respect to quality. That appellee promptly notified appellant of the result of inspection, and that the rejected material had been placed at disposal of appellant, offering, however, to take the same at 50 per cent. of contract price, which was accepted, and appellee fully paid appellant for the entire car load. That, in accepting said offer, appellant stated, “This kind of a loss cannot be allowed to occur in the cars which we ship you” and suggested that appellee should have his agent, or some one here, inspect the goods, and receive them. That, on March 26th, appellant shipped another car load, containing 39,000 feet, a part of which was also defective, and did not fulfill the requirements of the contract, of which due notice was given appellant, and payment in full was made on same terms as before. That, in addition to the two cars, about a half a car load of such lumber had prior thereto been delivered by appellant, and shipped, with other materials, through the branch office of appellee. That no part of the balance of the order was ever shipped. That, in subsequent correspondence, appellant asked for inspection at Indianapolis, and appellee insisted on inspection in New York, and suggested that appellant might secure some representative there to aid in the future inspection; and, further, he duly notified appellant that if the contract was not complied with he would be required to purchase the material elsewhere, and would hold appellant liable for the difference in price. That appellee was compelled to, and did, pay $18 per 1,000 for the whitewood in order to comply with his obligation, on account of the failure of appellant. That the freight from Indianapolis to New York was $1.45 per...
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