Beaman-Marvell Co. v. Gunn

• Decision Date: 29 June 1940
• Citation: 306 Mass. 419,28 N.E.2d 443
• Parties: BEAMAN-MARVELL CO. v. GUNN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 419

28 N.E.2d 443

BEAMAN-MARVELL CO.

v.GUNN et al.

Supreme Judicial Court of Massachusetts, Franklin.

June 29, 1940.

Bill for accounting by the Beaman-Marvell Company against George A. Gunn, Jr., and others. From an interlocutory decree confirming master's report as modified by the sustaining of defendant's exceptions, and from a final decree for one defendant, plaintiff appeals.

Reversed and decree directed.Appeal from Superior Court, Franklin County; Burns, Judge.

W. A. Davenport, of Greenfield, for G. A. Gunn, Jr.

C. V. D. Siegel, of Springfield, for complainants.

RONAN, Justice.

This is a bill for an accounting in which the plaintiff alleges that the defendant Gunn is indebted to it in the sum of $2,327.68, and that Gunn threatens to bring suit against the plaintiff for the purpose of harassing the plaintiff with vexatious claims that are without merit. The defendant answered denying the material allegations of the bill and alleging that the plaintiff owed him for lumber sold and delivered to it. The case was referred to a master, whose report was confirmed as modified by the sustaining of certain exceptions of the defendant. The plaintiff appealed from the interlocutory decree confirming the report, and from the final decree establishing an indebtedness due to the defendant and dismissing the bill against the defendant bank.

The plaintiff is engaged in the manufacture of wooden boxes, and the defendant Gunn, hereinafter referred to as the defendant, is a lumber dealer. In the early spring of 1936 the plaintiff and defendant entered into an oral agreement, by which the defendant agreed to sell all the merchantable white pine plank of a certain thickness to be cut from the Chesterfield lot, so called, for $15 per thousand feet, and the plaintiff agreed to buy these planks at the said price. It was also agreed that the plaintiff would advance weekly to the defendant the sums necessary to enable the defendant to continue cutting the lumber on this lot. The parties are in dispute as to the amount of lumber that was cut and delivered by the defendant, and whether the defendant should be charged for the insurance on the lumber and interest paid by the plaintiff on money borrowed for the purpose of making weekly advancements to the defendant.

The master finds that the sawing operations took place on three locations or settings on the wood lot; that from the first setting 276,760 feet were sawed by the defendant and delivered to the plaintiff's factory; that 452,441 feet were sawed from the second setting and 196,883 from the third setting; and that the planks from the second and third settings were piled to dry and season in a pasture that the plaintiff had rented for the purpose or in the plaintiff's yard. The total number of feet of plank furnished by the defendant was 926,084, which at $15 a thousand would amount to $13,891.26. The plaintiff advanced $12,400.27 to the defendant. The amount of the plaintiff's indebtedness was established in the final decree as $1,490.99, which the plaintiff was ordered to pay with interest from the date of the filing of the bill, together with costs.

But the master found that a considerable quantity of the planks from the second setting and some from the third setting were affected by red rot which makes the lumber unfit for the manufacture of boxes. He allowed the plaintiff five per cent of the second and third settings on account of red rot. These two settings comprised 649,324 feet of lumber. After the hearings before the master began, the defendant under an agreement with the plaintiff withdrew 4,756 feet from a lot comprising 24,110 feet, which came from the secomd or third setting. The net amount of lumber received by the plaintiff from these two settings, therefore, amounts to 644,568 feet and after deducting five per cent for red rot he is chargeable with 612,340 feet. Adding this last figure to the 276,760 feet received by the plaintiff from the first setting, the total amount of lumber for which the plaintiff is chargeable is 889,100 feet. The price at $15 per thousand feet totals $13,336.50, and after the sum of $12,400.27 paid by the plaintiff is deducted a balance due the defendant is left amounting to $936.23 for lumber sold to it by the defendant.

The remaining question is whether the defendant is to be charged for...