Arkla Lumber & Mfg. Co v. West Va. Timber Co

• Citation: 132 S.E. 840
• Court: Supreme Court of Virginia
• Decision Date: 22 April 1926
• Parties: ARKLA LUMBER & MFG. CO. v. WEST VIRGINIA TIMBER CO.

132 S.E. 840

ARKLA LUMBER & MFG. CO.

v.WEST VIRGINIA TIMBER CO.

Special Court of Appeals of Virginia.

April 22, 1926.

Error to Circuit Court, Orange County.

Action by the Arkla Lumber & Manufacturing Company against the West Virginia Timber Company, in which defendant filed a special plea of set-off, under Code 1919, § 6145. Judgment for defendant on its set-off, and plaintiff brings error. Affirmed.

E. H. De Jarnette, Jr., of Orange, for plaintiff in error.

Shackelford & Robertson, of Orange, for defendant in error.

McLEMORE, J. 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, Mo., and the defendant with its principal office in Orange, Va.

On February 4, 1920, defendant wrote plaintiff for quotations on car of 10/4 No. 1 common or better elm, and on the 7th of February received a reply offering to sell a car at $160 per M f. o. b. Detroit. The following is a part of the correspondence:

"Charleston, W. Va., February 4, 1920. "Arkla Lumber & Mfg. Co., St. Louis, Mo.— Gentlemen: We are in the market for one or more cars 10/4 No. 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 Co., Charleston, W. Va. Yours fourth have on St. Louis yard for prompt shipment one car ten quarter Elm verysmall per cent two common offer subject prior sale at one hundred sixty delivered Detroit.

"Arkla Lumber & Mfg. Co."

"February 7, 1920.

"West Virginia Lumber Co., 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 No. 2 common and better elm (very small percentage No. 2 common) at $160 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 & Mfg. Co."

Telegram:

"St. Louis, Mo., 2/10/20.

"West Virginia Lumber Co., Charleston, W. Va. Entering order for ten quarter Elm secure permit shipment from St. Louis via Wabash.

"Arkla Lumber & Mfg. Co."

Shipping instructions were given on February 13th, and the lumber, 12011 feet, was accordingly shipped promptly. Total purchase price for the car was $1,921.76, of which amount $1,200 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 center 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 counterclaim of defendant, set up in its special plea, of $1,612.90, 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.

                -------------------------------------------------------------------------------
                |12, 011 feet 2 1/2." No. 2 common and better elm at $160.00 per       |$1,921|
                |thousand f. o. b. Detroit, shipped Feb, 9, 1920, via Wab              |78    |
                |----------------------------------------------------------------------|------|
                |Less cash paid March 8, 1920                                          |1, 200|
                |                                                                      |00    |
                |----------------------------------------------------------------------|------|
                |Balance due with interest                                             |$ 721 |
                |                                                                      |76    |
                -------------------------------------------------------------------------------
                

"Respectfully submitted,

"E. H. De Jarnette, Jr."

The defendant's bill of particulars accompanying its special plea is as follows:

"West Virginia Timber Company, Inc., v. Arkla Lumber Company, Inc.

                -------------------------------------------------------------------------------
                |Cash paid on account of damage paid prior to inspection of car of elm |$1,200|
                |                                                                      |00    |
                |----------------------------------------------------------------------|------|
                |Freight and handling                                                  |124 73|
                |----------------------------------------------------------------------|------|
                |Storage and handling                                                  |48 00 |
                |----------------------------------------------------------------------|------|
                |The difference between contract price and the price at which the car  |240 24|
                |of elm purchased had been resold                                      |      |
                |----------------------------------------------------------------------|------|
                |Total                                                                 |$1,612|
                |                                                                      |96    |
                -------------------------------------------------------------------------------
                

—together with interest on said amounts from the ——day of February, 1920, until paid."

This statement was subject to a credit of $471.49 received after it was made up and filed, and was explained in a supplemental or amended grounds of defense as having been received from the sale of the said car of lumber after this suit had been instituted.

From an inspection of the statement just above set out it is apparent that the jury accepted the defendant's theory of the case, and allowed its claim in full, less $240.22 claimed to be profit at which defendant had the lumber sold, at the time of its purchase, and the sum of $471.49 received by defendant as the actual sale price for the lumber as finally sold on the open market.

Bill of exceptions No. 1 is as follows:

"The court erred in refusing to set aside the verdict against the Arkla Lumber & Manufacturing Company, and refusing to enter judgment for the Arkla Lumber & Manufacturing Company."

The defendant in its reply brief says there are three questions to be determined in this case:

"First, whether or not the lumber in question was reasonably merchantable lumber of the kind and quality ordered;

"Second, whether or not the Arkla Company was bound by the custom or usage to ship lumber of this character at least as dry as shipping dry; and, if so,

"Third, whether or not the lumber in question was in fact, shipping dry at the time of its shipment."

A proper answer to these questions will, we think, determine whether or not the court erred in refusing to set aside the verdict of the jury rendered in favor of the West Virginia Timber Company.

The contract between the parties is entirely in writing, and is admittedly silent as to whether the lumber should be dry, shipping dry or green, at the time of shipment. The defendant attempted to defend the action on the theory that where a certain grade of lumber is purchased to be shipped to another state, or locality, there is an implied warranty that it shall be of a merchantable grade and sufficiently dry to stand shipping without deterioration en route. This was sought to be read into the contract as a trade custom or usage, and the court submitted to the jury the issue thus raised in numerous instructions, five of which are here presented:

"(1) B. The court instructs the jury that there may be different customs and usages in different sections of the country, and that the Arkla Lumber Company would not be bound by any custom or usage which would add to or vary the terms of its contract with the West Virginia Timber Company unless they had actual notice of such custom or usage, or unless the custom or usage was so general in the trade or business of buying and selling lumber, that they will be presumed to have knowledge of such custom and usage."

"(8) B. The court instructs the jury that the contract sued on in this case is a written contract, and that...