Arthur Delapierre Co., Inc. v. Chickasaw Lumber Co.

• Decision Date: 22 May 1916
• Docket Number: 17982
• Citation: 71 So. 872,111 Miss. 607
• Court: Mississippi Supreme Court
• Parties: ARTHUR DELAPIERRE CO. INC. v. CHICKASAW LUMBER CO

71 So. 872

111 Miss. 607

ARTHUR DELAPIERRE CO. INC. v. CHICKASAW LUMBER CO

No. 17982

Supreme Court of Mississippi

May 22, 1916

APPEAL from the circuit court of Chickasaw county, HON. J. L. BATES Judge.

Suit by the Chickasaw Lumber Company against Arthur Delapierre Company, incorporated. From a judgment for plaintiff defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Mayes &amp Mayes, for appellant.

Flowers, Brown, Chambers & Cooper, for appellee.

OPINION

SYKES, J.

This is an appeal from a judgment of the circuit court of the First district of Chickasaw county for seven thousand, five hundred dollars, damages for profits claimed to have been lost by the appellees because of the failure of the appellant to deliver to them at their mill certain logs claimed to have been purchased by appellees from appellant. The material allegations of the declaration necessary to an understanding of the case are about as follows, viz: That on or about the 7th day of April, 1909, the defendant entered into a contract with the plaintiffs, whereby it sold the plaintiffs the amount of two million, two hundred thousand feet of timber in logs, two hundred thousand feet of which was poplar, and two million feet of red oak and white oak; said defendant was to cut said timber and haul the same to Pyland, and there yard it for inspection, measurement, and delivery to the plaintiffs at that point, at certain specified prices. That the defendant, under this contract, delivered a certain number of logs to the plaintiffs, and then failed and refused, without just cause, to deliver the balance. Plaintiffs alleged that they were making a profit of twenty-three dollars and fifty cents per thousand feet on all poplar logs received from the defendant under this contract; that upon the oak logs they were to have made a profit of six dollars and ninety cents per thousand feet if the contract had been complied with, claiming in all, as their damages, the profits they would have made on the logs after they were manufactured and sold of over sixteen thousand dollars. They further claim that, owing to the refusal of the defendant to deliver logs according to this contract, they were greatly damaged by not being able to secure timber, and were compelled to stop running their sawmill and shut down; that under the contract, if the defendant had fulfilled the same, plaintiffs would have had sufficient timber to have kept their mill running for twelve months; that in view of their contract with the defendant, they refused and failed to make contracts with other people for logs; and that they were greatly damaged because they had to pay the labor and running expenses of the mill while the same was shut down, which damage amounted to the sum of five thousand dollars, wherefore they sued, claiming as damages over twenty-one thousand dollars.

The testimony of the plaintiffs in this case is that their agent and an agent of the defendant made an oral contract for the purchase and sale of these logs; the testimony of the plaintiffs as to the exact amount being rather indefinite. Mr. A. F. Smith, who claims to have made the contract on behalf of the plaintiffs, when asked to tell the jury all about the contract, stated as follows:

"In the spring of 1909, Mr. Shepardson came up to our mill on the M. & O. branch out here and wanted to sell us some logs. He said he had between two million and three million feet of red and white oak, and between two hundred thousand and three hundred thousand feet of poplar; and we contracted with him for between two million or three million feet of oak and between two hundred thousand and three hundred thousand feet of poplar."

It will therefore be seen that the contract as alleged by the plaintiff, was for between two million and three million feet of red and white oak, and between two hundred thousand and three hundred thousand feet of poplar. If recovery can be had at all upon this contract, it will have to be for the smaller amount as testified to by this witness. We might say, in passing, that the agent of the defendant denied absolutely the making of the contract. The testimony for the plaintiffs also shows that the mill was shut down for several weeks, because of the failure of the defendant to deliver this timber, and that at other times they were not able to saw their full capacity of timber because of the breach of said contract. It does not show expressly what efforts were made by the plaintiffs to buy other logs of like kind and character after said breach. It was contended by the appellant that Mr. Shepardson had no authority to sell over five hundred dollars worth of timber for the appellant at a time; that he exceeded his authority if he made the contract in suit here. The testimony in this case shows, however, that this party was the manager of the timber and of the mill of the appellant, in Chickasaw county, and that he had the apparent authority, at least, and was so held out to the world by the appellant, to make this contract. We, therefore, see no merit in this contention of the appellant.

It is contended by the appellant that the instructions as to the measure of damages given the plaintiffs are absolutely erroneous. The first instruction told the jury, in effect, that if they found for plaintiffs, they should--"assess the damages at that amount that the jury reasonably believe from the evidence in the case would have been a reasonable profit that would have been made by the plaintiffs on the undelivered logs."

The second instruction, in effect, told them that, in...