American Hardwood Lumber Co. v. Dent.

• Decision Date: 05 December 1910
• Parties: AMERICAN HARDWOOD LUMBER CO. v. DENT.
• Court: Missouri Court of Appeals

132 S.W. 320

151 Mo. App. 614

AMERICAN HARDWOOD LUMBER CO. v. DENT.

Springfield Court of Appeals. Missouri.

December 5, 1910.

1. CONTRACTS (§ 153) — CONSTRUCTION — TERMS.

In determining what a contract means, the words used must be given their usual and ordinary meaning; but, subject to such limitation, the court in cases of doubt will give that construction to the language used which will uphold the contract.

2. CONTRACTS (§ 154) — CONSTRUCTION — EQUITIES.

Courts will endeavor to construe a contract in such a manner as is most equitable to the parties, and so that one party shall not have an unfair or unreasonable advantage over the other.

3. SALES (§ 1) — CONTRACTS — DEFINITENESS.

A memorandum of a contract for the sale of lumber addressed to the seller opened with the statement: "You may enter our order for the following hard woods to be gotten out between now and January 1, 1903." It then contained a schedule of prices per thousand for different kinds and sizes, and, under the head "Quantity," stated: "You are to cut at least 500,000 feet and not to exceed a million feet of stock within the above specified contract." Held that, since plaintiff was given no discretion as to the kind and quantity of lumber to be cut and tendered except that the amount should not be less than 500,000 feet nor more than 1,000,000, the determination of such elements was within defendant's discretion, and hence the contract was sufficiently definite to sustain a suit for damages for its breach.

4. SALES (§ 418) — BREACH OF CONTRACT — DAMAGES.

Where a contract for the manufacture and sale of lumber provided for a delivery of not less than 500,000 feet nor more than 1,000,000, and specified the prices to be paid according to the kind and sizes cut, leaving both the amount to be tendered and the variety to the seller's discretion, the damages recoverable in an action for the seller's breach of contract should be determined with reference to the seller's obligation to furnish 500,000 feet of the kind of lumber on which the loss would be the least.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by the American Hardwood Lumber Company against R. K. Dent. Judgment for defendant, and plaintiff appeals. Reversed.

Julius T. Muench, for appellant. Pearce, Davis & Curlee, for respondent.

COX, J.

Action for damages for breach of contract. The plaintiff at the trial had the contract identified, then offered it in evidence; but, upon defendant's objection, the court excluded it. Plaintiff then took a nonsuit with leave to move to set the same aside, and, upon the court's refusal to do so, has appealed.

The contract referred to was as follows:

"St. Louis, Missouri, Aug. 21, 1902.

"Dent-Deming Lumber Co., Newton, Mississippi — Gentlemen: You may enter our order for the following hard woods, to be gotten out between now and January 1, 1903.

                     "Prices
                1st & 2nd quartered white oak...........$40 00 per M. ft
                Common            Do.           ........ 20 00    Do
                2½, 3 & 4 in. plain white oak, 1st
                                & 2nd................... 21 00    Do
                       Do.         Common Do............ 11 00    Do
                1 in. 1st & 2nd Poplar.................. 23 00    Do.
                1¼ in.     Do. ....................... 24 00    Do.
                1½ & 2 in. Do. ....................... 25 00    Do.
                1 in. Common Poplar..................... 13 00    Do.
                1¼ in.  Do. .......................... 14 00    Do.
                1½ & 2 in. Common Poplar.............. 15 00    Do.
                1st & 2nd Ash .......................... 25 00    Do.
                Common Ash ............................. 15 00    Do.
                1st & 2nd quartered Red Oak............. 30 00    Do.
                Common     Do. ......................... 18 00    Do.
                Plain Red Oak $2 per M less than plain white oak.
                1 in. plain white oak same price as plain red oak.
                Shipping culls one-half price of common grades.
                

"Quantity.

"You are to cut at least 500,000 feet and not to exceed 1,000,000 feet of stock within the above specified time.

"Terms of Payment.

"It is agreed and understood that, when you have this stock out in lots of 50,000 feet, properly piled on dry piling sticks, we are to send our representative, and advance you $12 per M feet on all stock so piled, it being understood that only common and better will be piled together, and all culls and mill culls thrown out. When the stock is shipping dry, we are to send our inspector to inspect and measure this material according to the rules now in force and published by the National Hardwood Lumber Association. When said lumber is so inspected and measured, we are to pay you the balance due you, figured upon the above list of prices, less the $12 per M. feet advanced, and less 2% cash discount.

"When the $12 per M. feet advancement is made, you are to mark the piles `Property of American Hardwood Lumber Company.' You are to give us bill of sale, covering all piles advanced on as above provided, it being stipulated in said bill of sale that only $12 per M feet has been advanced on the stock: it being understood that title passes to us when the $12 per M advance is made.

"It is our intention to ship the thick, plain oak and ash green.

"You are to hold the stock on your yard free of yard rent and to load same on cars at Newton, Miss.

"Inspection.

"In case of any disagreement between our two inspectors as regards loss or measurement, it is hereby agreed that both parties to this contract will abide by the decision of an authorized National Hardwood Lumber Ass'n inspector, whose official certificate on such lumber in dispute will be considered final; in case such an inspector is called in, the buyer and seller will equally divide the expense.

"Thickness and Lengths.

"The quartered oak, both red and white, is to be cut 1 in. 1½ and 1½ in. The plain oak is to be cut 2½ in., 3 in. and 4 in. The poplar as much as possible into 1¼ in. and 1½ in. We can also use some 1 in. and 2 in. thickness. Ash is to be cut as much 2½ in. and thicker as possible. You will cut as much 14 and 16 ft. lengths as possible, and not over 10 % 10 ft.

"Yours respectfully, American Hardwood Lumber Company, by Geo. H. Cottrill, Secretary.

"Accepted: Dent-Deming Lumber Company, by R. K. Dent, Sec'y & Treas."

The objection to this contract was that it was so ambiguous and indefinite that it could not support plaintiff's cause of action; that there was nothing to show the amount and quantity of each variety of lumber to be shipped. When this objection was made, counsel for plaintiff stated that he expected to follow the introduction of the contract with oral...