Arkla Lumber & Mfg. Co. v. Henry Quellmalz Lumber & Mfg. Co.

• Decision Date: 11 June 1923
• Docket Number: No. 23083.,23083.
• Citation: 252 S.W. 961
• Court: Missouri Supreme Court
• Parties: ARKLA LUMBER & MFG. CO. v. HENRY QUELLMALZ LUMBER & MFG. CO.

252 S.W. 961

ARKLA LUMBER & MFG. CO. v. HENRY QUELLMALZ LUMBER & MFG. CO.

No. 23083.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by the Arkla Lumber & Manufacturing Company against the Henry Quellmalz Lumber & Manufacturing Company. Verdict for defendant in fact, plaintiff was granted a new trial, and defendant-appeals. Affirmed.

C. I. Bloodworth, of Corning, Ark., and W. M. Hezel, of St. Louis, for appellant. Chase Morsey, of St. Louis, for respondent.

HIGBEE, C.

This is an action to recover money advanced on contract by defendant for the sale and delivery of four cars of lumber. By an amended answer defendant pleaded a counterclaim. The jury found for the defendant on plaintiff's claim and for the plaintiff on defendant's counterclaim. The court sustained plaintiff's motion for new trial, and the defendant appeals.

The petition alleges that on or about April 19, 1920, the defendant contracted to sell and deliver to plaintiff four carloads of ash lumber of certain grades and specifications; that defendant thereafter shipped to plaintiff four carloads of lumber; that as per agreement plaintiff advanced to defendant 80 per cent. of the purchase price thereof upon presentation of the bill of lading with draft attached, which, including freight, inspection fees, etc., was the sum of $8,050.32; "that when said cars of lumber arrived they were inspected by plaintiff and found not to be in accordance with the requirements of the contract; that plaintiff therefore refused to accept said lumber and demanded of defendant the return of said $8,050.32," but defendant refused, etc. Wherefore plaintiff prays judgment, etc.

The abstract recites that "on November 24, 1920, the defendant filed its answer, which, on March 17, 1921, it was permitted to amend and it was also permitted to file a counterclaim." The answer is, in substance, as follows: The defendant "admits it sold to plaintiff four carloads of ash lumber to grade as per specifications set out, but denies that said four carloads of lumber were sold by defendant or purchased by plaintiff under one contract"; that it shipped the said four carloads of ash lumber according to the contract of purchase with plaintiff; that the lumber market had fallen in price when said lumber was shipped, and plaintiff wrongfully and without truth or right claimed said lumber did not grade up to the contract; that it offered to allow plaintiff to reject any part of said lumber that did not come up to he specified grade and to ship more lumber to make up for same, but plaintiff wrongfully refused to credit said lumber on the advances it had made to defendant and unloaded said lumber in its yards and kept same and has refused to account for same; admits it was advanced 80 per cent. of the price of said lumber, but denies it was to pay freight or inspection fees and denies that advances amounted to $8,050.32; denies that when said lumber was inspected it was not in accordance with the contract; denies that for that or any other lawful reason plaintiff refused to accept said lumber, and "denies that it is due plaintiff the sum of $8,050.32, or any other sum." The words italicized were added during the introduction of defendant's evidence by leave of court over plaintiff's objection and exception.

"An amendment to the answer and counterclaim," filed on March 17, 1921, reads, in substance: Comes the defendant and for its amendment to the answer and its counterclaim herein states that defendant shipped to plaintiff the lumber which it agreed to sell plaintiff; that the lumber shipped was exactly the grade, dimensions, and kind that plaintiff had been receiving from defendant on previous orders, and that defendant had agreed to ship plaintiff and plaintiff had contracted to buy; admits it has received on said lumber $8,050.32 aid "that plaintiff is still due defendant $2,383.88, after allowing all just credits"; that plaintiff has wrongfully refused to pay defendant said balance justly due it; that, though defendant has offered and did offer at the time to allow plaintiff to reject all material shipped not grading up to the contract and to ship other material in its place, plaintiff has refused to pay for said lumber according to its contract, but has piled said lumber in its yard in the open weather in such manner that it has deteriorated and is now worthless. Wherefore defendant prays judgment for said sum of $2,-383.88, with interest and costs.

The reply is a general denial. Plaintiff and defendant were members of the National Hardwood Lumber Association.

Hubert J. Lamson, plaintiff's secretary, testified that he placed an order with defendant in April, 1919, for four cars of ash lumber to grade at least 30 to 35 per cent. firsts and seconds, not to exceed 8 to 10 per cent. of No. 2 common, to be graded in accordance with the rules of the National Hardwood Lumber Association, the balance of the order to be No. 1 common. The defendant shipped these cars and sent a bill of lading with draft attached through a bank "which were paid by plaintiff." (The four drafts were produced, marked paid April 22, April 23, May 15, and May 16, respectively.) The total amount of drafts and expense was $8,050.32. When the first car arrived, he noticed that the stock was not up to grade in accordance with the contract. It did not contain 30 to 35 per cent, firsts and seconds; it ran heavily to No. 2 common, not holding to the limit of 8 to 10 per cent. It contained more or less of No. 3 common, which was below the grade of No. 2, and which was not ordered. We then called for an inspection by the National Hardwood Lumber Association which rendered us a certificate of inspection. Witness identified a letter written by plaintiff which reads:

                                                    "5/22/20
                

"Henry Quellmalz Lumber & Mfg. Co., Peach Orchard, Ark.—Gentlemen: We herewith inclose National certificate covering car No. 5374, shipped by you on April 21st. When we unloaded this stock we noticed that it was a very poor car and immediately called for a National inspection, and you will note the results are very discouraging.

"There is certainly no good excuse for such a fall-down and no good excuse for loading so much No. 2 and 3 common in 10/4.

"We are unable to handle a car of this character and will ask that you please forward us a check covering the draft which we paid, amounting to $1,957.50, and freight $117.16, and give us other disposition of the car.

"We cannot use this at any price, as we have no trade for such poor 10/4 ash.

"Hoping you will arrange for prompt disposition of the stock, and beg to remain

                               "Arkla Lumber & Mfg. Co
                                             "Sec'y
                

"CC—St. Louis Office."

Witness, continuing, testified: As the other cars came in I proceeded with them as I did with this car, and had each one inspected by an inspector of the National Hardwood Lumber Association. As a certificate was rendered, I forwarded it to Quellmalz. Witness identified a letter of June 1, 1920, which is as follows:

                                              "6/1/20
                

"Henry Quellmalz Lumber & Mfg. Co., Peach Orchard, Ark.—Gentlemen: We herewith inclose National certificates on cars No. 72286 M. P. shipped April 20 and car No. 858718 P. L. shipped May 11th. Our inspector finds the stock so poor that we put a National inspector on same, and you will find from the certificates how poor the stock is and we couldn't handle same.

"We have the cars on our unloading track, and we wish you would dispose of same to somebody else, and send us check for the 80% advancement, also freight bills amounting on car No. 858718 to $100.41 and on car No. 72285 to $109.06, also inspection fee on car 72285, $18.53, and on car No. 858718, $17.67.

"We cannot use this stock at any price as we have no use for such poor lumber.

"Hoping you will arrange for prompt disposition of the stock, and beg to remain.

                    "Yours very truly
                                   "Arkla Lumber & Mfg. Co.
                                                 "Sec'y."
                

Witness also identified a letter of June 21, 1920, to defendant, as follows:

                                                  "6/21/20
                

"Henry Quellmalz Lumber & Mfg. Co., St. Louis. Mo.—Gentlemen: Replying to yours of the 10th instant, the last four cars of ash shipped us are absolutely not in accordance with order, and we cannot use and de not intend to take in stock.

"The chief inspector of the National Association was on the yard a week ago last Saturday and reinspected the one car on which you requested a reinspection. They have not rendered us a certificate covering the car, but presume you have received one.

"We herewith inclose certificate covering the Last car, No. 62081, which you will note contains almost 6,000 feet of No. 2 common and about 1,500 feet of No. 3 common out of the total of 14,145 feet. This is just about as rank a lot of stock as we have ever had shipped, and, as stated above, we certainly cannot and do not intend to take same in.

"If you will refer to our order No. 325 of April 19th you will find the following specifications: 'To contain not to exceed 8 to 10% No. 2 common and at least 30 to 35% 1st and 2d. Stock to be well manufactured, run good average widths and lengths, of good texture, containing no punky or brashy stock. National Hardwood Lumber Association rules to govern.'

"If you will refer to the certificate covering these four cars, you will find that they did not conform in any way with our order.

"According to our records, we have paid as follows on these four cars: 62081, draft $1,-820.42, freight $123.29, Insp. fees $18.39; 72286, draft $1,904.51, freight $109.00, Insp. fees $18.53; 858718, draft $1,778.63, freight $100.41, Insp. fees $17.67; 5374, draft $1,-957.50, freight $117.16, Insp. fees $20.85; unloading four cars $21—team expense or 4 cars $40.

"This makes a total of $8,050.32 which we are...