Arkla, Etc., Co. v. West Va. T. Co.

Citation146 Va. 641
PartiesARKLA LUMBER AND MANUFACTURING COMPANY WEST VIRGINIA TIMBER COMPANY.
Decision Date22 April 1926
CourtVirginia Supreme Court

1. USAGES AND CUSTOMS — Existence of Usage — Question for Jury. — Whether a custom or usage exists is a question of fact to be determined by the jury under proper instructions from the court.

2. USAGES AND CUSTOMS — Presumption of Knowledge of Usage — Parties Engaged in the Same Trade. — Where both parties are engaged in the same trade, they will be presumed to have knowledge of all trade usages which are lawful and reasonable; and it is not necessary in such a case to prove actual knowledge, or that the usage is so general or universal that knowledge may be presumed.

3. USAGES AND CUSTOMS — When Usage or Custom are Read into a Contract — Conflict of Laws — Place of Contract or Place of Performance — Case at Bar. The instant case was an action arising out of a contract for the sale of lumber. Defendants relied upon a custom of the trade that when lumber is shipped it should be "shipping dry." Both plaintiff and defendant were large buyers, sellers and manufacturers of lumber. The contract of purchase was consummated in St. Louis and it was insisted by plaintiff that no trade custom or usage could be invoked unless such custom or usage obtained in that city. This is not the true test. The usage or custom to be read into a contract is that which is recognized as such in the locality where the contract is to be performed — i.e., not necessarily that locality where it was signed by the parties, but that locality with reference to which its terms are to be made effective; and, therefore, in the minds of the parties, the locus contractus.

4. CONFLICT OF LAWS — Contracts — Place of Contract or Place of Performance. — Everything relating to the making of the contract is to be governed by the law of the place where it was made; everything relating to the performance of the contract is to be controlled by the law of the place of performance.

5. USAGES AND CUSTOMS — When Part of Contract — General Rule. — Parol evidence is competent to annex to a contract a custom or usage of the business and locality known to the parties, or so generally and well settled as to be presumed to be known to them, and with reference to which they must be deemed to have contracted.

6. USAGES AND CUSTOMS — Lumber Trade — Condition of Lumber when Shipped — Shipping Dry — Appeal and Error — Conflict in the Evidence. — In the instant case, an action by sellers of lumber against the purchaser, defendant asserted that there was a custom of the lumber trade in reference to the dryness of lumber, when no degree of dryness was specified in the order, that the lumber should be "shipping dry," and introduced evidence to the effect that the lumber in question was not "shipping dry." Plaintiff introduced evidence tending to prove that the lumber shipped under the contract was shipping dry. The evidence on this phase of this case was in irreconciable conflict. The question was submitted to the jury under proper instructions and their finding for defendant is conclusive upon appeal.

7. SALES — Damages — Profits — Where a Purchaser Had Resold the Subject of Sale which when Received was Unfit to Fill Purchaser's Contract. — In an action by seller of lumber against the purchaser, the purchaser plead set off. The purchaser had resold the lumber and when delivered it proved to be in bad condition and upon plaintiff disclaiming interest, the purchaser sold the lumber for the best price he could get. As the price at which the purchaser before delivery had resold the lumber was undisputed, the difference between that price and the contract price sufficiently measured the purchaser's loss of profit. And such loss of profit was recoverable as the direct result of the breach of the contract of sale.

8. DAMAGES — Loss of Profit — General Rule. — Profits lost by reason of a breach of contract, when they can be established with reasonable certainty, may be recovered.

9. SALES — Damages — Loss of Profit — Instructions — Harmless Error — Case at Bar. — In an action by a seller of lumber against the purchaser, the purchaser plead set off, and claimed damages for the loss of profit because he had resold the lumber which when delivered was found to be in bad condition. The court instructed the jury that if they found for the defendant they might award this loss of profit as a part of the damages. The jury denied the defendants the profits claimed.

Held: That the instruction, if erroneous, was not prejudicial to the plaintiff.

10. SALES — Subject Matter of Sale not in Good Condition when Delivered — Resale by Purchaser. — Where the seller of lumber, which was received by the purchaser in bad condition and not conforming to the contract of sale, declined to acknowledge any responsibility for its disposition, the purchaser may sell at the best market price which is presumably its value.

Error to a judgment of the Circuit Court of Orange county. Judgment for defendant. Plaintiff assigns error.

E. H. De Jarnette, Jr., for the plaintiff in error.

Shackleford & Robertson, for the defendant in error.

MCLEMORE, J., delivered the opinion of the court.

This is an action of assumpsit, in which the plaintiff sought to recover a judgment against the defendant for the balance claimed to be due on the purchase price of one car of Elm lumber. To this action, a special plea of set off under section 6145 of the Virginia Code was filed and a verdict returned and judgment entered against the plaintiff on the said special plea in the sum of $901.24. For the failure of the court below to set this verdict aside a petition was presented and a writ of error awarded.

Both parties to this litigation were engaged in manufacturing, buying and selling of lumber, the plaintiff with its chief office in St. Louis, Missouri; and the defendant with its principal office in Orange, Virginia.

On February 4, 1920, defendant wrote plaintiff for quotations on car of 10/4 1 common or better elm, and on the 7th of February received a reply offering to sell a car at $160.00 per M, f.o.b. Detroit. The following is a part of the correspondence:

"CHARLESTON, W. VA.

February 4, 1920. "ARKLA LUMBER AND MANUFACTURING COMPANY, St. Louis, Mo. "GENTLEMEN:

"We are in the market for one or more cars 10/4 #1 common and better elm, and would be pleased to have you quote us on same, delivered f.o.b. cars. Detroit, Mich., rate; shipping permit to be furnished for prompt shipment.

"Would also be pleased to have you quote on any other items of stock you have to offer in gum, elm, ash or oak.

"Yours respectfully,

"WEST VIRGINIA TIMBER COMPANY,

BY J. W. JAMES."

TELEGRAM.

"St. Louis, Mo., 2/7/20. "WEST VIRGINIA LUMBER COMPANY, "Charleston, West Va.

"Yours fourth have on St. Louis yard for prompt shipment one car ten quarter elm very small per cent two common offer subject prior sale at one hundred sixty delivered Detroit.

"ARKLA LUMBER AND MANUFACTURING COMPANY."

February 7, 1920. "WEST VIRGINIA LUMBER COMPANY, "Charleston, W. Va. "GENTLEMEN:

"In reply to your inquiry of the 4th instant we wired you this morning as follows:

"`Yours fourth have on St. Louis yard for prompt shipment one car ten quarter elm very small per cent two common offer subject prior sale at one hundred sixty delivered Detroit.'

"Which telegram we now beg to confirm, and you will understand that we take pleasure in offering you a carload of 10/4 #2 common and better elm (very small percentage #2 common) at $160.00 delivered Detroit.

"However, as we only have this one car and have other quotations out on same, we are compelled to make the offer subject to prior sale.

"Thanking you for the inquiry and hoping to hear favorably from you, we beg to remain.

"Yours very truly,

"ARKLA LUMBER AND MANUFACTURING COMPANY",

TELEGRAM.

"St. Louis, Mo., 2/10/20. "WEST VIRGINIA LUMBER COMPANY, "Charleston, W. Va.

"Entering order for ten quarter elm secure permit shipment from St. Louis via Wabash.

"ARKLA LUMBER AND MANUFACTURING COMPANY".

Shipping instructions were given on February 13th, and the lumber, 12,011 feet, was accordingly shipped promptly. Total purchase price for the car was $1,921.76 of which amount $1,200.00 was paid before the lumber reached its destination, leaving a balance due of $721.76 to be paid upon inspection and acceptance when it arrived in Detroit.

The car arrived at destination in due course, but upon inspection was found to be in bad condition as testified by Mr. Keith: "The lumber in the car was steaming; was hot; and you could smell the sourness of the lumber."

It was thereupon rejected, and the defendant company being unable to use it in its then condition, to fill the order for which it was purchased, had to pile it with sticks between the boards, until disposition could be made of it. Defendant refused to accept the car because it contended the lumber was green when loaded on car, whereas it should have been "shipping dry" at that time. This is the storm centre out of which the issues in this suit have arisen and about which there are sharp conflicts in the testimony.

This lumber was finally sold on the open market by defendant and brought the sum of $471.49.

In the trial of the case the jury had for consideration the statement of the plaintiff of $721.76 claimed to be due upon the original invoice, and the counter claim of defendant, set up in its special plea, of $1,612.95 which it asserted its right to recover against the plaintiff, because of the alleged breach of the contract on the part of the Arkla Company.

The plaintiff's bill of particulars is as follows: "Arkla Lumber Company v. "West Virginia Timber Company, "Car 119649 C.B. & A.

                (TABLE OMITTED)
                

"Respectfully submitted,

"E. H. DEJARNETTE, JR."

The defendant's bill of particulars accompanying its special plea is as follows: "West Virginia Timber Company, Inc. v. "Arkla Lumber Company, Inc.

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