Black & Yates, Inc. v. Negros-Philippine Lumber Company

Decision Date23 December 1924
Docket Number1236
PartiesBLACK & YATES, Inc., v. NEGROS-PHILIPPINE LUMBER COMPANY [*]
CourtWyoming Supreme Court

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by Black & Yates, Inc., against the Negros-Philippine Lumber Co. for breach of contract in failing to deliver certain mahogany lumber. From a judgment for defendant, plaintiff appeals.

Affirmed.

Haggard & O'Mahoney and M. A. Kline for appellant.

The power of the Court to consider the circumstances under which the contract negotiated is well established; J. W. Denio Milling Co. v. Malin, 25 Wyo. 143; Burrows v. Co. (Calif.) 184 P. 5; Keen v. Ross (Ky.) 216 S.W 605; Prowant v. Sealy (Okla.) 187 P. 235, 2 Page Conts. 1123; the intention of the parties as disclosed from their writings should be considered; Berg v Erickson, 234 F. 817; Nitke v. Co., 263 F. 888; war conditions rendered time of performance indefinite. There was an offer and acceptance by telegram; 1 Page Conts. 296; Perry v. Co., 15 (R. I.) 380; Weld v. Co., 205, Fed. 770; a subsequent letter imposing conditions could not affect general acceptance by telegram; Beach v Co., 202 Mass. 177, 88 N.E. 294; Metro. Co. v. Co., 196 Mass. 72, 81 N.E. 645; Gartner v. Hood (Ga.) 12 S.E. 878; Williams v. Burdick Co. (Ore.) 125 P. 844; a printed letter-head is no part of a contract written underneath; Summers v. Hubbard, 153 Ill. 102; Sturtevant Co. v. Films Co., 216 N.Y. 199; defendant was bound, but acts as its sales manager; Hammitt v. Co. (Id.) 181 P. 336; Langstroth v. Co., 148 N.Y. 224; Moagget v. Co. (N. J.) 111 A. 656; Harvey v. Bourn, 112 Ark. 63; Jenkins v. Co., 147 F. 641; there was no discharge by impossibility of performance, 5 Page Conts. 2675; Standard Co. v. Co., 244 F. 250; N. P. R. Co. v. Co., 195 U.S. 439; defendant contracted its output to another and thus breached its contract. The delay was not greater than contemplated by the parties; Baylies v. Fetterpleie, 7 (Mass.) 324; Hull Co. v. Coal Co., 113 F. 256; reasonable time depends upon circumstances surrounding the making of the contract, 9 Cyc. 613; in re Hellams, 223 F. 460; Concrete v. Boyes, 180 Mich. 609; burden is upon defendant to establish that a delay of three years was beyond the contemplation of the parties. The correspondence shows that the delay which occurred was within the contemplation of the parties; Laughlin v. Co., (Tex.) 218 S.W. 144; Pottash v. Co., 272 F. 658; Meng Co. v. Co., 58 Wash. 223, 28 L. R. A. (N. S.) 1007.

Rogers, Johnson & Fuller and Pierpont Fuller and Clyde M. Watts for respondent.

The offer at most was to sell and deliver within a reasonable time, if transportation could be obtained within such time. Neither party was bound to deliver or accept after a reasonable time had elapsed; the agreement was contingent upon strikes, delays of carriers and unavoidable conditions beyond control. Defendant's agent could not contract otherwise. Storey on Agency, 832 Corpus Juris 578; a contract silent as to time implies performance within a reasonable time, 25 Cyc. 179; Mechem on Sales I. 1134; if performance is impossible within a reasonable time the contract ends; Cameron & Co. v. Mathews, 124 S.W. 192; Eppens v. Littlejohn, 164 N.Y. 187; Williston on Conts. 1968; Whiting v. Gray, 27 Fla. 482; Metro Co. v. Billings, 202 Mass. 457; the offer of February 1916 was withdrawn before acceptance; Frank v. Stratford-Hancock, 13 Wyo. 37; Waterman v. Banks, 144 U.S. 394; Stitt v. Huidekopers, 17 Wall 384; modification of an offer before acceptance amounts to a withdrawal; Stroock Co. v. Co., 213 Mass. 354; I Page on Conts. 132; Craig v. Harper, 57 Mass. 158; Hopkins v. Co., 137 Wis. 583; a qualified conditional acceptance is in effect a rejection of the offer, Minn Co. v. Mill, 119 U.S. 149, 13 C. J. 281; Egger v. Nesbit (Mo.) 27 S.W. 385; Campania v. Co., 146 U.S. 483; Lewis v. Johnson, 123 Minn. 409; the telegram of March 20th, 1916 was not an acceptance; Hite v. Co., 164 F. 944; Wheeling Co. v. Evans (Md.) 55 A. 373; the order of March 1916 must be considered with the telegram; Williston on Conts. 628, 13 C. J. 528; Gibbs v. Wallace, 58 Colo. 364; Lynchburg Mill v. Co. (Va.) 57 S.E. 606; Cement Co. v. Warehouse Co., (Calif.) 199, Pac. 369; Scaife Co. v. Co., (Wash.) 89 P. 882; Beach Co. v. Mfg. Co., 88 N.E. 924; the correspondence shows no acceptance and no agreement; Shaw Co. v. Hackbarth Co. (Ore.) 201 P. 1066; inability to obtain transportation within a reasonable time terminated the contract, if there was one, without liability to either party; Allanwilde Co. v. Oil Co., 248 U.S. 377; The Claveresk, 264 F. 276; Metro Bd. v. Dick Ann Cas. 1918, C. 390; Roessler Co. v. Dyeing Co., 254 F. 777; Davis v. Mining Co. (Mass.) 49 N.E. 629; New Eng. Co. v. Lumber Co., 220 Mass. 207; appellant's authorities cited upon impossibility of performance are not in point; the delay was of greater duration than contemplated by the parties and terminated the contract; Allanwilde Co. v. Oil Co., supra; where performance becomes impossible because of an outbreak of war involving a nation of which one of the parties is a citizen or subject, the contract is frustrated and dissolved; Roessler Co. v. Dyeing Co., supra; Williston on Conts. Vol. 3, Sec. 1938; the entering of the U. S. into the war had that effect; Badische Co., 15 A. L. R. 1517; the Kirchmann-purchase was in effect an abrogation of the contract by a mutual consent.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought by Black & Yates, a Corporation, plaintiff, against the Negros-Philippine Lumber Company, a Wyoming corporation, defendant, for the recovery of $ 199,625. The plaintiff in its petition alleged that by a written offer made by defendant to plaintiff on February 14, 1916, and a written acceptance thereof made by plaintiff thereafter, defendant and plaintiff entered into a contract for the purchase by plaintiff of one million board feet of Philippine mahogany lumber at $ 50 per one thousand board feet, for 975000 board feet thereof and at $ 75 per thousand board feet for 25000 board feet thereof, and agreed to deliver the same to plaintiff f. o. b. New York City "as soon thereafter as it should become possible to secure transportation therefor by vessel from the Philippine Islands to New York City;" that delivery of the said lumber in the manner aforesaid became possible on or about January 1, 1919, and has been possible at all times thereafter, and that said defendant has failed and refused, and still fails and refuses to make said delivery. Defendant denied the making of said contract, and alleged that, if made, it was for delivery within a reasonable time from the date of the negotiations and that the impossibility of securing shipping, due to war conditions which prevented delivery for three years, abrogated the contract. The case was tried to the court without the intervention of a jury and judgment was entered in favor of the defendant.

Defendant was the owner of certain mahogany timber in the Philippine Islands, and of a sawmill there located. Plaintiff was a wholesale dealer in hardwood lumber, with its principal place of business in New York City. During the year 1915 plaintiff had purchased from defendant through Lew L. Thomas, defendant's sales' manager, 350,000 feet of this mahogany and had been active in introducing it on the eastern market in competition with African mahogany. Except for the 350,000 feet above referred to, defendant had never sold any of its product in the eastern portion of the United States and desired to create a market for it there. Its sales' manager, in February, 1916, suggested that plaintiff purchase an entire shipload, consisting of one million feet, and submit a formal request for prices and terms, so that in reply a formal offer might be made. In response to this request plaintiff wrote the first letter on February 14, requesting prices and terms for 500,000 to 1,000,000 feet of lumber. At that time, the European war had been raging for some time, and shipping conditions were in a demoralized condition owing to said war. In response to the request for prices and terms as aforesaid, the defendant, through its said sales' manager, on February 14, 1916, quoted prices and terms for said lumber, viz: one million board feet at $ 50 per M; 500,000 board feet at $ 50 per M, plus any additional freight charge over and above $ 20.50, and $ 75 per M for flitches. The only reference therein to the time of delivery is in paragraph 11 of the letter, which is as follows:

"With reference to the time of delivery, we could not say exactly just when we could deliver either the one million board feet or the five hundred thousand board feet shipment owing to the present demoralized condition of transportation on the water. However, we confidently expect to be able to procure transportation facilities loading at the mill in April or May of this year, and would make the delivery to New York City as soon thereafter as possible."

Two letters were written on February 15, 1916, but need not be set forth. All these letters were written at New York. On February 24, 1916, after Thomas had gone to Chicago, he received a communication that approximately one million feet of lumber might be shipped from the Philippine Islands to the Pacific coast, and advised plaintiff of that fact. The latter, on March 2, 1916, asked whether or not defendant would forward this lumber from the Pacific coast to New York at the price of $ 50 per thousand feet quoted in the letter of February 14. On March 6, 1916, Thomas replied that he would not be able to send the entire million feet, owing to the extra freight that would have to be paid, and also stated:

"Not a thing, or...

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