Tallahatchie Lumber Co. v. Cecil Lumber Co.
| Citation | 124 Miss. 897,87 So. 449 |
| Decision Date | 21 March 1921 |
| Docket Number | 21357 |
| Court | Mississippi Supreme Court |
| Parties | TALLAHATCHIE LUMBER CO. v. CECIL LUMBER CO |
1. SALES. On shipment of lumber delivery f. o. b. destination seller held bound to procure cars.
Where a contract for the sale of lumber provides that delivery shall be f. o. b. point of destination, and it is clear from the evidence that the parties construed the contract to require the shipper to furnish cars, the duty is on the seller to procure cars for shipment of the lumber.
2 SALES. Seller held not relieved of duty to furnish cars for shipment of lumber by inability to secure them.
Where a contract for the sale of lumber is unconditional, and the seller has engaged to deliver the lumber f. o. b. point of destination, and to provide cars for that purpose, and has failed to provide against the consequences of a shortage of cars or otner contingency, the seller is not discharged from the duty of performing the contract by reason of inability to secure cars for the shipment of the lumber.
3 SALES. Purchaser's request to withhold shipment of lumber because of temporary embargo held not to justify immediate cancellation.
Where under a contract for the sale of lumber for export, there has been a delay of 30 days in the shipment of lumber, and the seller was then requested by wire to withhold shipments for a few days on account of a temporary embargo in the port of shipment, and the seller had certain cars already loaded at the time this request was received, held, that the receipt of this request to withhold shipments for a few days did not justify an immediate cancellation of the contract, and that it was the duty of the seller to notify the purchaser of existing conditions before diverting the shipments and canceling the order.
4. EVIDENCE. In action for breach of contract of sale buyer's manager could testify from recollection as to price at which goods resold, although resale contract was in writing.
In an action for the breach of a contract for the sale of lumber, a contract of resale of the lumber is only collaterally involved, and where a large amount of lumber has been delivered and paid for under the contract of resale, it is competent for the sales manager who negotiated the contract of resale and handled the deliveries thereon to testify from his independent recollection the price at which the lumber had been sold, although the contract of resale was in writing.
APPEAL from circuit court of Pearl River county, HON. A. E. WEATHERSBY, Judge.
Action by the Tallahatchie Lumber Company against the Cecil Lumber Company. Judgment for defendant on a directed verdict, and plaintiff appeals. Reversed and rendered.
Judgment reversed.
Tally & Mason and Whittington & Osborn, for appellant.
The appellee agreed to ship the lumber f. o. b. New Orleans, Louisiana. The recent case of J. M. Griffin v. Edward Eiler Lumber Company, No. 20895, in which this court decided that where lumber was to be delivered f. o. b. cars at the point of shipment, the duty devolved upon the purchaser to procure cars is not in point. It is not in the case here. In the first place, the contract provided for the shipment of the lumber f. o. b. New Orleans, Louisiana, where provision is made for deliver f. o. b. the point of destination, the title does not pass until the subject-matter has reached such point (23 R. C. L., 1338). Where the delivery is to be made at a particular place, it is the duty of the seller to transport the subject-matter to such place. (23 R. C. L. 1380.)
If the sale is f. o. b. point of destination, the title as a general rule is not deemed to pass until the property reaches its destination and is accepted by the buyer, the carrier being deemed the seller's agent to transport the property to the place of delivery (24 R. C. L. 45). If the parties interpreted the contract to mean that the appellee was to furnish the cars, the court will follow such construction. (23 R. C. L., 1338.) See the notes and the cases cited in Ramsey & Gore Mfg. Co. v. Kelsea, 22 L. R. A. 421.
If the vendor undertakes to deliver at a certain place, it is his duty to procure the cars. McNeal v. Braun, 53 N. J. L. 617, 26 A. S. R. 441; see notes under Hurst v. Altamont Mfg. Co., 6 L. R. A. (N. S.) 929, and see, also, notes under Culp v. Sandoval, L. R. A. 1917-A, page 1164. There can be no question but what the seller in this case undertook to secure the cars for he said he tried to get cars. It was his interpretation of the contract. There is no dispute on this point.
In view of the construction placed on the contract by the parties, together with the stipulation regarding delivery f. o. b. New Orleans, Louisiana, the buyer was not required to furnish cars. Harman v. Washington Fuel Co., 81 N.E. 1017. The duty was upon the appellee to procure the cars, and inasmuch as it made an unconditional contract, it cannot plead its failure to procure cars to justify its non-performance of the contract.
Unconditional Contract-Risk Assumed by Appellee. The appellee was not discharged from the performance of its contract merely because it could not get cars. The contract was unconditional. The risk of getting cars was assumed by the appellee. It was bound to either deliver the lumber in accordance with its contract or to respond in damages.
A contract is not invalid, nor is the promisor discharged merely because it turns out to be difficult, unreasonable dangerous or burdensome. 9 Cyc., 625. It has been held that it is no excuse for a failure to deliver whiskey according to contract that there was war and the whiskey would have been likely to be seized. 9 Cyc., 626.
Where the performance becomes impossible subsequent to the making of the contract, the general rule is that the promissor is not therefore discharged. As is said in an old case, "Where the law creates a duty or charge, and the party is disabled to perform it without any default in him, there the law will excuse him--but where the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." 9 Cyc., 628.
The appellee cannot defend on the ground that it could not obtain cars for it could only plead this as a defense by a stipulation in its contract. The contract was for unconditional delivery. There were no exceptions of any kind to relieve the appellee from delivery. It was an unqualified contract for the delivery of the lumber. The failure to get cars did not discharge the appellant--see the valuable notes under Runyan v. Culver, 1916 L. R. A. 3, and see especially the notes at pages 10, 71, 72, and 73.
Temporary embargoes may temporarily prevent the performance of a contract, but they do not terminate the contract and would only suspend it. 1916F, L. R. A. 73. Parties who enter into contract must perform the obligations created thereby, though performance subsequently becomes unexpectedly burdensome, or even impossible. When the contract was made, the conditions were normal. The appellee merely maintains that afterwards it could not get cars. This is no defense. We call very special attention to the recent case of Piaggio v. Somerville, 80 So. 342; Piaggio v. Somerville, 80 So. 324, L. R. A., 1916 F. 10.
Appellant did not renounce contract. The appellee was not relieved from complying with its contract by the request of the appellant to withhold shipment on account of the embargo from New Orleans to Havana. It was nothing more than a request. The testimony shows that the appellant knew nothing at all about any part of the lumber being loaded and that if it had known the lumber had been loaded it would have accepted the lumber notwithstanding the embargo.
The request was not renunciation of the contract and the appellant, if it had been sued by the appellee on the contract, could not have pleaded the mere request to withhold shipment for a few days as a discharge. A renunciation must be unequivocable and distinct. A mere expression of an intention, or the mere making of a request is not enough. 9 Cyc., 637.
Parker & Shivers, for appellee.
It will be remembered that the dealings between the parties to this litigation arose, transpired and were concluded during the early part of 1918, a time when the World War was at it's most serious stage, at a time when our government controlled shipments of every kind, at a time when our government, as it should have done, absolutely controlled the movements of all rolling stock of each and every railroad through the country; at a time when every lumber manufacturer throughout the country was being put to it's best towards manufacturing and selling and in fact manufacturing, selling or shipping that which the Government either desired to use in constructing cantonments for its soldiers, or to be used in connection with the war and all cars and rolling stock were being used, to meet the various exigencies arising in the course of the Government's war preparations, etc.
The only time that it is shown by the record, either from the testimony of appellant or appellee that cars could be had, in which to move this stock for appellant, was on or about the 16th of March, when appellee received three carloads of feed and the Government had not ordered these three cars loaded out and then it was that the appellee, anxious to get the benefit of moving the stock of boards, loaded same for appellant and appellant stopped the shipment by its telegram above referred to. Thus it will be seen that appellant is responsible for and the cause of said lumber movement being stopped, therefore, we say that the failure to move said lumber in accordance...
To continue reading
Request your trial