Booth-Kelly Lumber Co. v. Williams

• Decision Date: 09 March 1920
• Citation: 95 Or. 476,188 P. 213
• Parties: BOOTH-KELLY LUMBER CO. v. WILLIAMS.
• Court: Oregon Supreme Court

188 P. 213

95 Or. 476

BOOTH-KELLY LUMBER CO. v. WILLIAMS.

Supreme Court of Oregon

March 9, 1920

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by the Booth-Kelly Lumber Company against W. J. Williams. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover a balance stipulated to be due and to recover the agreed purchase price of certain wood under the terms of a contract. The cause was tried before the court and a jury and a verdict rendered in favor of plaintiff for the sum of $2,170.83. From a resulting judgment defendant appeals.

The contract relates to transactions between plaintiff and defendant in the wood business and covers a period from April 30, 1915, to September 30, 1916. It stipulates that on April 30, 1915, on account of prior transactions, there was due from defendant to plaintiff the sum of $1,359.97, upon which interest should accrue from that date at the rate of 6 per cent. per annum. It is also agreed thereby that on the same date there were on certain yards under the defendant's control 2,301 1/8 cords of wood previously delivered; and the contract also provides for future delivery of wood at $2.25 a cord, f. o. b. cars at Eugene. By the terms of the contract all wood on the yards unsold when the contract was terminated should be taken over by the plaintiff and credited to the defendant at $2.65 a cord. The contract provides that--

"The actual railroad measurements of the wood delivered to the party of the second part as shown by the railroad expense bill shall govern the quantity of wood delivered."

The complaint sets forth the contract at length and the different items of debit and credit between the parties, of which the following is a summary:

Debits.

                            Balance shown by statement of April 30, 1915
                            
                          
                            $1,358 97
                          
                            Wood on yard April 30, 1915, 2,301 1/8 cords @ $2.25
                            
                          
                            5,177 53
                          
                            Wood delivered afterwards 4,617.34 cords @ $2.25
                            
                          
                            10,388 99
                          
                            Freight and demurrage charges
                            
                          
                            34 57
                          
                            
                          
                            __________
                          
                            Total
                            
                          
                            $16,960 06
                          
                

Credits.

                            Cash
                            ...............................................................
                          
                            $ 1,206 01
                          
                            Hauling
                            .................................................................
                          
                            39 69
                          
                            Freight paid
                            ...........................................................
                          
                            164 01
                          
                            Commissions
                            ..............................................................
                          
                            2 89
                          
                            Cash received from sales of wood
                            .....................................
                          
                            9,356 72
                          
                            Wood on yard September 30, 1916, 1,591.03 cords
                            ......................
                          
                            4,216 91
                          
                            
                          
                            __________
                          
                            Total
                            ...........................................................
                          
                            $14,986 23
                          
                            Leaving a balance due from defendant to plaintiff under
                            the contract of
                            ......................................................
                          
                            $ 1,977 83
                          
                

--together with interest on $1,358.97 thereof from April 30, 1915, at the rate of 6 per cent. per annum.

The defendant answered, admitting the execution of the contract, the amount due April 30, 1915, and the number of cords of wood on the yard at that date, and admitting the credits allowed to defendant, and except as admitted denies the allegations of the complaint. Further answering, the defendant avers, in effect, that immediately subsequent to the execution of the contract plaintiff, with the purpose and intent of defrauding defendant and of securing from him payment for more wood than should be actually furnished under the contract, and with the purpose and result of thereby procuring from the railroad company as a basis of plaintiff's charges to defendant a wrongful, erroneous, and grossly excessive measurement of the wood upon each car delivered to defendant, and contrary to the terms of the contract, loaded "each car of wood in a loose, criss-cross, irregular, poor, and improper and unworkmanlike manner, in such a way and to the end and with the result that the same when loaded would and did, as to outward dimensions and appearance, apparently contain and measure more cords of wood than the same actually did contain"; and that plaintiff overcharged defendant "approximately" 1 1/2 cords of wood upon each of the cars delivered to him under the contract. The defendant, as an affirmative defense, further pleaded that on September 30, 1916, when the contract was terminated, there were on the yards mentioned 2,299.07 cords of wood, with which the plaintiff failed to credit defendant's account at the agreed price of $2.65 per cord. The reply put in issue the new matter of the answer.

Fred E. Smith, of Eugene, for appellant.

E. R. Bryson, of Eugene (Smith & Bryson, of Eugene, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The bill of exceptions discloses that plaintiff, upon the trial of the cause, introduced evidence tending to support the allegations of the complaint. Error is predicated upon the following rulings upon the evidence: Mr. Williams, the defendant, as a witness in his own behalf, having stated that he saw the cars of wood shipped to him by plaintiff, was interrogated as follows: "Q. Describe to the jury the sort of cars they were loaded on and how they came in." Objection was made to the question by counsel for plaintiff as incompetent and not within the issues, and for the additional reason that under the contract the defendant was bound by the measurements of the railroad company as shown by the expense bills. The court sustained the objection and defendant saved an exception, whereupon in support of defendant's special defense of fraud counsel for defendant stated, in substance as follows: The defendant offers to prove that immediately subsequent to the execution of the contract the plaintiff, with the purpose and intent of cheating, wronging, defrauding, and overreaching the defendant, loaded each car of wood delivered and charged to the defendant "in a loose, criss-cross, irregular, poor, and improper and unworkmanlike manner, in such a way and to the end and with the result that * * * this plaintiff has wrongfully, fraudulently, intentionally, and knowingly overcharged defendant approximately 1 1/2 cords of wood upon each and every car delivered him under said contract"; and continued reading all of the formal allegations of the answer as to the fraud of plaintiff in piling the wood as such tender of proof. The offer was denied and the defendant saved an exception. The record then shows the following: "It is stipulated that the witness Hollis Moody is deemed to have been called, asked as to whether or not in making measurements he took into consideration the manner in which the wood was piled upon the car, objection made, the testimony excluded, and offer of proof made; that the same was denied, to which ruling defendant excepted."

It is the position of plaintiff that the answer fails to allege any error on the part of the railroad company in measuring the wood.

The most that can be said in regard to the allegations of the special defense is that it is averred that the wood was irregularly piled and as a result plaintiff overcharged the defendant. Whether the person making the measurements inadvertently overlooked the spaces between the wood, or fraudulently or carelessly made an erroneous computation of the amount of wood on the several cars,...