Florida Athletic Club v. Hope Lumber Co.

• Decision Date: 15 January 1898
• Citation: 44 S.W. 10
• Parties: FLORIDA ATHLETIC CLUB et al. v. HOPE LUMBER CO.
• Court: Texas Court of Appeals

44 S.W. 10

FLORIDA ATHLETIC CLUB et al. v. HOPE LUMBER CO.

Court of Civil Appeals of Texas.

January 15, 1898.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by the Hope Lumber Company against the Florida Athletic Club and others. From a judgment for plaintiff, defendants appeal. Reversed.

This suit was filed by the Hope Lumber Company, plaintiff, against the Florida Athletic Club and others, defendants, for the recovery of a balance alleged to be due under a certain contract to furnish lumber, and for certain extra lumber furnished and labor performed. Said contract was originally made and entered into between defendants and the Dallas Lumber Company, but said contract, before the filing of this suit, was assigned by the Dallas Lumber Company to plaintiff.

Plaintiff alleged that on August 5, 1895, the Dallas Lumber Company entered into a written contract with the defendants, whereby it agreed to furnish and deliver to the defendants between August 15, 1895, and September 15, 1895, in and near Dallas, Dallas county, Tex., "all and singular the lumber necessary, as shown in the bill or schedule attached to said contract (which is hereto attached, and cannot be made a part hereof), and approximating one million feet, more or less, as might be required for the erection and completion of an amphitheater building in the county of Dallas, Texas, according to plans and specifications made by E. H. Silven, architect for such building," which were in the possession of the defendants, and on that account a more particular description thereof could not be given that by the terms of the contract defendants agreed to pay for the same at the rate of $10 per 1,000 feet, one-half to be paid on delivery, and the balance one-half on September 1, 1895, and the remainder on November 1, 1895; that under said contract plaintiff delivered to the defendants the lumber of the kind and quality prescribed in said contract to the amount of 1,118,343 feet, and charging $15 per 1,000 feet for 9,884 feet instead of $10 per 1,000, on account of extra work done at the request of defendants, and that plaintiff, at the special instance and request of the defendants, performed other extra work on said lumber in sawing the same to short lengths; that defendants made certain payments under said contract, but failed and refused to pay the balance due thereunder, for which this suit was brought. Plaintiff further alleged that defendants used a large portion of said lumber, after the same was delivered, in erecting said amphitheater building; that afterwards defendants tore down said building, and that at the time of the filing of this suit said lumber was upon the ground where the same had been delivered; that within less than four months after the indebtedness accrued under the contract plaintiff filed a certain mechanic's lien on said lumber. At the time of the filing of the petition plaintiff filed a sequestration bond and affidavit, and caused a writ of sequestration to be levied on the lumber so delivered by it, and then on the ground at Dallas, as alleged in said petition.

Defendants demurred generally to the allegations contained in plaintiff's petition, and specially excepted to said allegations, because it appeared therefrom that the suit was on a written contract, and referred to plans and specifications, and yet failed to set forth said plans and specifications, or the substance thereof, and failed to allege that they were unable to produce said plans and specifications, whereby defendants were not fully advised as to plaintiff's entire cause of action. Defendants also filed general denial, and, specially answering, alleged: That, if plaintiff ever held such contract as the one described in its petition, said contract, among other things, provided: "Should any dispute arise between the parties hereto as to the full compliance by the said Hope Lumber Co. of all things by them to be performed under this agreement, then the said E. H. Silven shall be the final arbitrator of any such dispute, and his decision shall be final of any such matter." That in the settlement of the questions between the said parties a dispute arose as to whether the plaintiff had furnished lumber in accordance with, and up to the quality and grade provided for in, the contract. That such dispute was referred to said E. H. Silven in accordance with the provisions of the contract, and said Silven rendered a decision that, on account of defects in the lumber, the defendants were entitled to a reduction of 20 per cent. from the original contract price, whereby these defendants would only be indebted to plaintiff in the sum of $506.58, which amount the defendants were then ready and willing and offered to pay. Defendants further specially pleaded that it was provided in said contract, and in the specifications, which were made a part thereof, that the lumber to be furnished thereunder was to be "No 1 mill run, Texas pine, of first-class quality free from large knots or shakes that would impair its strength or durability, and must be approved by the superintendent"; that for such described lumber these defendants were to pay the consideration of $10 per 1,000 feet; that plaintiff never did deliver the lumber of the kind and quality specified in the contract, except as to the item of 9,884 feet, at $15 per 1,000 feet, to which defendants offered no objection; that of the lumber delivered about 250,000 feet was of a lower grade and quality and value than the quality to be delivered, and was in truth and in fact only of the value of $8 per 1,000; that the balance of said lumber, to wit, 858,343 feet, was absolutely worthless, and useless to defendants, and was not reasonably worth more than $5 per 1,000 feet, that same was warped, bent, distorted, rotten, weather-beaten, full of knot holes that destroyed its strength and utility; that it was not of the specified length, which rendered it useless, and on account of being sappy said lumber was almost useless for any purpose; that by reason of the failure of the plaintiff to furnish the lumber in accordance with the terms of the contract, and defendants having already paid the sum of $8,409.35, they were not indebted to plaintiff in any sum whatever; that the consideration of the contract had wholly failed, and that they did not then owe to plaintiff any sum of money, unless it be the sum of $506.58, the amount due by the award of E. H. Silven, arbitrator; and further alleged that the award of said Silven was a just award, free from bias and prejudice, and that the same was binding and conclusive on the questions at issue in said suit.

On November 28, 1896, plaintiff filed its first supplemental petition in answer to defendants' amended answer, denying each and every allegation of same; and, among other things, specially alleged that all the differences and controversies between the parties had been fully settled and adjusted by the allowance to the defendants of a credit of $99.88, and that by said allowance all differences and disputes between them were conclusively settled, and that there therefore remained no dispute or differences for the adjudication of said E. H. Silven; and further specially alleged that it furnished and delivered to defendants, at Dallas, within the time specified in the contract, lumber of the grade and quality and value as specified in its original petition, and that said lumber was received by defendants according to the usage and custom of the trade, and defendants made reclamations against the plaintiff for shortage in the lumber shipped, but made no objection to grade or classification, and thereby waived such objections, if any; and that afterwards, and long before the institution of this suit, such reclamations and differences had been adjusted, and that defendants have now no right to reopen such settlement, as the plaintiff had settled with the mills for certain lumber purchased by plaintiff to fulfill said contract, all of which was well known to defendants; wherefore defendants were estopped to allege that said lumber was not of the grade and quality contracted for. Plaintiff further specially replied that after the receipt of the lumber by the defendants, and while the same was still open to examination and inspection, and capable of being easily classed and graded, plaintiff, having heard a rumor that there was objection made to the grade and quality of the lumber, sought an interview with the defendants for the purpose of having the same adjusted before the lumber was used; and thereupon, by united arrangement between the plaintiff and defendants, plaintiff's agent and defendants' agent went together where the lumber was situated, for the purpose of there examining and inspecting the lumber, and determining whether it was of grade and quality in compliance with the contract, and of settling and adjusting any differences there might be on the subject; and the said Silven then and there, as agent for the defendants, after a full and complete inspection and examination of the lumber, stated and declared to the plaintiff's agent that the lumber would be accepted, and that it fully complied with the contract; and thereupon defendants made payments, as alleged in plaintiff's original petition, without further objection or dispute, and thereafter removed over 700,000 feet of the lumber, and used same in the erection of the amphitheater, cutting same up into various sizes and lengths, and so altering and disfiguring the same as to render it almost impossible to determine its original grade and quality; that thereafter, when the prize fight had been abandoned, and defendants had no further use for the lumber, they again for the first time began to raise objections as to the grade and quality of the lumber supplied, and proposed to pay to plaintiff its account, less $1,000; and then, in December, 1895, for the first time, suggested that E. H. Silven, the...