Baker Matthews Lumber Co v. Lincoln Furniture Mfg. Co. Inc

• Decision Date: 22 September 1927
• Citation: 139 S.E. 254
• Parties: BAKER MATTHEWS LUMBER CO. v. LINCOLN FURNITURE MFG. CO., Inc.
• Court: Virginia Supreme Court

139 S.E. 254

BAKER MATTHEWS LUMBER CO.

v.LINCOLN FURNITURE MFG. CO., Inc.

Supreme Court of Appeals of Virginia.

Sept. 22, 1927.

Error to Circuit Court, Smyth County.

Action by the Baker Matthews Lumber Company against the Lincoln Furniture Manufacturing Company, Inc. Judgment for defendant, and plaintiff brings error. Reversed, annulled, and remanded.

L. Preston Collins, of Marion, for plaintiff in error.

Buchanan & Buchanan, of Marion, for defendant in error.

CAMPBELL, J. This was an action of trespass on the case in assumpsit, brought by the plaintiff in error against the defendant in error, to recover the sum of $850, alleged to be due the plaintiff by the defendant. The plaintiff is a Tennessee corporation engaged in manufacturing and selling lumber. The defendant is a Virginia corporation engaged in manufacturing furniture.

In April, 1923, the defendant placed an order with the plaintiff for 100, 000 feet 4/4 common and select plain sap gum lumber at $49.50 per M feet. By the terms of sale, the lumber was to be delivered f. o. b cars at Bristol, Va., and shipment thereof was to be made during the month of July.

The defendant, at the time the order was given, was erecting a new plant at Bristol. This plant, on June 11, 1923, was uncompleted. On this date the defendant wrote the plaintiff that their plant was uncompleted, and requested that the shipment be delayed until notification. On June 23d, plaintiff replied to this letter, agreeing to withhold shipment for a reasonable length of time. On July 9th the defendant wrote the plaintiff the following letter:

"Your letter of the 23d has been unanswered due to the writer's absence from the office. We are going to be quite frank with you and 'lay our cards on the table.'

"This order for gum was placed with you for shipment to our new plant which was at that time under construction. We anticipated the approximate time when we would need this stock, but unforeseen delays have made it impossible for us to be ready at the time specified. The layout of our lumber yard will be such that we can only handle lumber direct from cars to kiln trucks. Our kiln storage tracks, as well as entire dry kiln equipment, have been delayed, and construction on kilns and tracks will not be started until the plant is finished.

"We do not see any possibility of being able to receive this lumber before October, and we want to ask that in view of this situation that you will release us from this order or hold up until we are ready to accept. We believe that you will be glad to do this, and assure you that it will be remembered in placing our future requirements for lumber."

Replying to this letter, plaintiff wrote defendant:

"We will have the stock ready for you at that time and will arrange to make delivery of the entire lot between October 1st and November 1st, 1923."

On October 10th, plaintiff wrote defendant as follows:

"We received a letter a few days ago from Mr. H. N. Saxton, Knoxville, Tenn., wherein he stated that you had requested cancellation of your order No. 39 for 100, 000' 4/4 No. 1 common and select plain sap gum for shipment to your new plant at Bristol, Va., your reason being based on the fact that your plant would not be completed this year. We now have before us a clipping from a Knoxville paper indicating that your plant is practically completed and that operations will start in November.

"We accepted your order in good faith and we do not believe you are warranted in requesting cancellation. The fact that the market on this class of material has declined should have no bearing whatever on the matter.

"We are not disposed to accept cancellation.

"In the event you are not willing to receive this stock in accordance with the contract, we will be obliged to sell same for your account and hold you responsible for any loss sustained through your failure to carry out your part of the agreement. We dislike very much to resort to this procedure but your continued refusal to accept the lumber will necessitate such action as will protect our interests in the matter. Kindly let us hear from you by return mail, and oblige. * * *"

In reply to this letter, the defendant, on October 12th, wrote as follows:

"Your letter of the 10th instant to hand. We are not responsible for what the newspapers say, and would say that we have been delayed in getting our new factory started owing to the delay in a number of our contractors, and we have no way of knowing yet when they are going to show up. All the material has been onthe ground for many months for the brick stack, and no one has shown up to build it yet. We have not even had a promise of some of the material for tank, and a number of other contractors have not shown up to complete their work yet.

"We expect to purchase several million feet of gum per year for our plants at Marion and Bristol; and, in case you see fit to act as suggested by you, just go to it; you of course have the right to do as you please, but if anything is ever made out of such stuff as this we have never known it."

This ended the correspondence, and subsequently thereto the plaintiff sold the lumber to other parties and charged the defendant with the difference.

There was a trial by jury, which resulted in a verdict for the defendant, upon which verdict judgment was entered, and to that judgment the writ of error in this case was awarded.

It is assigned as error that the court erred in overruling the motion of the plaintiff to exclude the opening statement of counsel for the defendant, and in permitting counsel to persist in said statement over objection. Bill of exception No. 1 shows that counsel made the following opening statement to the jury:

"The Lincoln Furniture Manufacturing Company, Inc., a local concern, was engaged in the manufacturing of furniture at the time that they purchased from the plaintiff in this case the 100, 000 feet of gum, as stated by counsel on the other side, and had at the same time purchased from various other concerns many hundreds of thousands of feet of lumber of like specifications.

"When it was found that the Bristol plant would not be completed as formerly anticipated, these various concerns were requested to withhold shipment of the lumber thus purchased, which requests were complied with, and subsequently the lumber thus purchased was shipped and received by the local concern.

"The Lincoln Furniture Manufacturing Company, Inc., intended all of the while to receive the particular stock purchased from the Baker Matthews Lumber Company, Inc., and would have received it had it been shipped."

By statute (Code, § 4905) it is provided that on the trial of any case of felony or misdemeanor counsel for the commonwealth and for the prisoner shall have the right to make an opening statement of their ease to the jury. There is no such statutory right respecting the trial of a civil case. However, so deeply rooted is the practice, after the jury is sworn, of permitting opening statements to be made by counsel for the plaintiff and the defendant, that it might be error for the trial court to withhold such permission.

In Burks' Pleading and Practice (2d Ed.) § 254, we read:

"Immediately after the jury is sworn, counsel are expected to state the case to the jury, so that they may know at this early stage the questions to be decided by them, and make an intelligent application of the evidence as it...