Black River Lumber Co. v. Warner

• Decision Date: 19 December 1887
• Parties: BLACK RIVER LUMBER CO. v. WARNER et al.
• Court: Missouri Supreme Court

6 S.W. 210

93 Mo. 374

BLACK RIVER LUMBER CO. v. WARNER et al.

Supreme Court of Missouri.

December 19, 1887.

1. SALE — WHAT CONSTITUTES — EVIDENCE — INSTRUCTIONS.

On suit for breach of contract for the manufacture and delivery of lumber by plaintiff to defendants, the court instructed the jury upon the theory that the contract was directly between the parties, refusing an instruction asked by defendants, who were commission merchants, as to their being mere agents of plaintiff, which hypothesis had some support in letters passing between the parties adding to prices stated the words, "commission, etc., off," and "commission at 5 per cent. off." Held, that the refusal was reversible error.

2. SAME — ACCEPTANCE OF GOODS — ESTOPPEL TO DISPUTE QUALITY.

Payment for lumber, inspected and accepted as in part performance of a contract, cannot be refused, in an action on the contract price, on the ground that it did not come up to the contract.

3. SAME — GOODS TO BE MANUFACTURED — REFUSAL TO ACCEPT — MEASURE OF DAMAGES.

The court, on the trial of a suit against defendants for breach of contract in refusing to inspect and accept lumber manufactured for them, instructed the jury to award the contract price as damages, if they found for plaintiff, less necessary expenses for loading, freight, etc., if delivery had been required, while defendants claimed the difference between the contract price and the market value as the proper rule. Held, that the measure of damages for articles manufactured to order, their value consisting chiefly in labor and skill, was correctly stated by the trial court.

4. SAME.

In such action, as to lumber not sawed, because defendants refused to go on with the contract, the measure of damages will be the difference between the contract price and the cost of manufacture, including cost of timber, hauling, loading, and freight to place of delivery.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

E. J. White, for appellant. T. K. Skinker, for respondent.

BLACK, J.

This suit is founded upon an alleged contract between the plaintiff, a corporation engaged in manufacturing lumber, and the defendants, Warner & Pearman, whereby it is alleged the plaintiff was to manufacture and deliver to the defendants between four and five thousand feet of lumber. The suit is in three counts. The first seeks to recover a balance due on lumber delivered; the second declares for the contract price of another portion, which was sawed but not received by the defendants; and the third seeks to recover by way of damages the profits which would have accrued to the plaintiff, but for the refusal of the defendants to go on with the contract. The defendants answer, among other things, that they did not purchase the lumber; that they were but commission merchants, and as such sold the lumber for plaintiff, and as its agents, for an agreed compensation to the E. C. Clark Lumber & Iron Company, which company purchased the same for the Union Pacific Railroad Company. There was a verdict for the plaintiff on each of the three counts, and the defendant Pearman appealed.

The complaints are that the court erred in refusing to submit the question of agency to the jury, and in the instructions given upon the measure of damages. Mr. Daniels was the managing officer of the plaintiff at its office in St. Louis, and Mr. Badgley had control of its affairs at the mill, which was in Butler county, some 200 miles from St. Louis; and the defendants were lumber commission merchants in St. Louis. Daniels testified that in December, 1881, he saw the defendants, and wanted to sell them lumber to be delivered after it was sawed; that he told them his company had no agents, and sold for cash only; that he made prices with defendants for a bill of lumber, as he thought, but Pearman went to Badgley and made a different contract. The defendants, in substance, testified that Daniels called upon them to solicit orders; that they told him of a contract which the Clark Company had, to furnish a large amount of lumber for the Union Pacific Railroad Company, and that they could get him a part of that order; that Daniels wanted to sell directly to them, and at prices something less than the Clark Company was paying; that they refused to buy, because they were doing a commission business only; and that Daniels said they should see Badgley, and whatever he said would be all right. Pearman says he then got a list of lumber from the Clark Company, went to the mill, and Badgley made a memorandum of such lumber as he wanted to cut at the prices; that he told Badgley who the lumber was for, and that it would be inspected by the agent of the Union Pacific Railroad Company. Badgley states that Pearman presented him a list of some 800,000 feet, and wanted to know how much he could cut; that he made a note of what he would take, and agreed upon prices; that Pearman was to go home and send him a letter, which would form the contract; and that he traded directly with Pearman. Pearman then went to another mill in Arkansas, and made arrangements for another portion of the lumber, a list of which he had exhibited to Badgley. When Pearman returned to St. Louis, the following

                correspondence ensued:                  "ST. LOUIS, January 3, 1882
                

"Black River Lumber Co., Neeleyville, Butler County, Mo. — GENTLEMEN: Please saw for us the following bill of white or burr oak, $23 per M. ft., F. O. B. cars here, commissions, etc., off, to be inspected at the mill in lots not less than 50 M. feet, and to be of sound timber, free from loose or rotten knots, to be suitable for car construction purposes.

                       "Very respectfully,                         WARNER & PEARMAN."
                

On the fifth January, 1882, defendants wrote Badgley another letter, stating that the prices of the lumber in their former letter should have been "$29 for sills, and all oak 20 feet, and under $23." A detailed bill showing the sizes and dimensions of the lumber was attached to the letter of the 3d. On the fifth January, Badgley answered the letter of the third as follows: "Yours of the third inst. at hand; contents noted. You are in error about prices of oak lumber. We quoted for 200 M. feet of shorts, as per your bill, at $23, and for 200 M. feet of long, as per your bill, at $29, commission at 5 per cent. off, F. O. B. in St. Louis, and not for the whole amount at $23, as stated in yours. Please correct error, and we will accept the bill." It was upon this correspondence that plaintiff commenced sawing the lumber. It would seem that something had been said with respect to payments, not embraced in the above correspondence; and the plaintiff being in need of money, Daniels saw the defendants on the fourteenth March, 1882, who then wrote Badgley a letter, in which they said: "We handle business on commission, which is five per cent. off amount of lumber billed, — $23 per thousand feet, — and we agree to pay 75 per cent. of the amount in advance, less regular freight in St. Louis." In December, 1881, and January, 1882, the defendants took a large number of orders from the Clark Company for lumber, amounting in all to some 3,000,000 feet. They made arrangements with mill men to supply the lumber to fill these orders. The arrangement with the Clark Company was that the lumber should be inspected by the Union Pacific Railroad Company, and that the Clark Company should have 90 days' credit, 2 per cent. off for cash. The prices are the same as those allowed the plaintiff; and the evidence is that defendants received no compensation from the Clark Company, but settled on the same prices as allowed to plaintiff.

The evidence shows that the plaintiff, in March and April, 1882, sawed and shipped to the defendants 13 car-loads. The first two were shipped directly to the defendants at St. Louis; the others, by their direction, to Omaha. The lumber thus shipped was all inspected at the mill by Nash, who represented the Union Pacific Railroad Company. The inspections were made by order of the Clark Company, and reported to defendants. In May, 1882, the plaintiff had sawed some 60,000 feet, and Nash went to the mill to inspect the same. It appears Nash was instructed by the railroad company not to inspect certain sizes included in the plaintiff's bill. Badgley declined to allow the inspection, because the sizes which Nash proposed to take would be but a part of the lumber then sawed. There is evidence tending to show that this difficulty arose from the fact that these sizes had been filled by other mills. Besides the lumber shipped and sawed, but not accepted, there was of the plaintiff's bill some 289,000 feet still to be sawed, and for which plaintiff had a portion of the logs in the mill-yard. On April 7th defendants wrote Badgley, saying that they had been notified by the railroad company that, for want of space in their yards, no more oak would be received for the present, and to govern himself accordingly. Badgley stopped sawing for the time; but in June he and Daniels saw defendants, and offered to go on with the contract. They say defendants refused to have the lumber then sawed inspected, and refused to take any more on the contract. There is some evidence that the difficulty betwen the parties was settled.

1. The instructions given by the court proceed upon the theory that the letters of January made a direct contract between the parties to this suit; and the first question is, whether the court should have also instructed upon the question as to whether defendants, in the matter in question, were simply acting as the agents of the plaintiff. This the court refused to do. There is no doubt but it is the duty of the court to instruct upon the issues made by the pleadings and evidence. It is equally true that it is the province of the court to construe written contracts. While parol evidence will not be received to contradict or vary a written agreement, still, if a part only of the...