Brockenbrough v. Champion Fibre Co.

• Court: U.S. Court of Appeals — Fourth Circuit
• Citation: Brockenbrough v. Champion Fibre Co., 176 F. 840 (4th Cir. 1910)
• Decision Date: 09 March 1910
• Docket Number: 945.
• Parties: BROCKENBROUGH v. CHAMPION FIBRE CO.

176 F. 840

BROCKENBROUGH v. CHAMPION FIBRE CO.

No. 945.

United States Court of Appeals, Fourth Circuit.

March 9, 1910

This was an action at law instituted in the superior court of McDowell county, N.C., by Edward H. Brockenbrough, a citizen of Virginia, against the Champion Fibre Company, an Ohio corporation, operating a wood fiber, pulp, and extract plant at Canton, N.C.

The complaint sets forth the execution of a contract whereby the plaintiff was to deliver from a certain defined territory in that state to defendant company at Canton, during a term of five years, not less than 3,000 nor more than 8,000 cords each year of chestnut and other woods in accord with specifications set forth, for which he was to receive $4.50 per cord if minimum amount was furnished the first year, and 25 cents additional per cord each succeeding year upon the same conditions as well as fixed bonuses each year after the first. This contract, dated February 15, 1908, provided that shipments under it should commence July 1st following, and should be subject to 'delays beyond control of the parties, as to forwarding and receipt. ' The complaint alleges, in effect, that, at the request of defendant, the date of commencement of shipments was postponed until October 1, 1908, at which time plaintiff was in all respects ready able, willing, and anxious to commence shipments and comply with said contract to the maximum limit, but that the Southern Railway afforded the only means of transportation and, when he applied to this company for cars, he was informed that the defendant had on October 1, 1908, placed an embargo on all chestnut wood consigned to it at Canton, in consequence of which the railway company would receive no chestnut wood for shipment to defendant until this embargo was lifted. It is alleged, further, that chestnut wood was the only wood which was contemplated to be furnished by the contract unless small quantities of the other varieties had been found in the course of cutting the chestnut; that, in consequence of this embargo, it became impossible for plaintiff to perform the contract. It is also alleged that, after the execution of the contract and at the time of the laying of the embargo, a great slump in the value of the wood had occurred, and that if plaintiff had been permitted to perform the contract which he alleges he was financially and otherwise fully prepared to do, he would have derived a profit of some $61,000, which sum he claims he is entitled to recover by reason of defendant's repudiation of the contract.

The cause was properly removed to the Circuit Court of the United States for the Western District of North Carolina, where answer was made by defendant in effect denying the repudiation of the contract, charging the embargo to have been only temporary, setting forth the reasons therefor, and alleging that it was lifted 28 days after it was laid. A trial was had. Four issues were agreed to be submitted: First, whether the contract had been executed; second, whether defendant committed a breach of it; third, whether at the time of its breach the plaintiff was able, ready, and willing to perform it; and, fourth, what damage plaintiff would be entitled to recover. After all the evidence was presented, the court below, on motion of defendant, directed a nonsuit to be entered. To this action of the court this writ of error has been sued out by plaintiff.

F. S. Kirkpatrick and James H. Merrimon (Kirkpatrick & Howard and Pless & Winborne, on the brief), for plaintiff in error.

Louis M. Bourne (Davidson, Bourne & Parker and Allen T. Morrison, on the brief), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and DAYTON, District Judge.

DAYTON District Judge (after stating the facts as above).

In our judgment the controversy in this case, under the pleadings narrows itself to a single question of law and fact. It is undisputed that the plaintiff in error had a five-year contract to deliver to defendant in error cordwood within fixed minimum and maximum limits each year for prices increasing in amount from year to year; that he was to commence delivery July, 1908, but, at the request of the defendant company, without objection postponed the beginning of delivery until October 1, 1908; that about October 14th he went from his contract work in Virginia to the defendant's place of business at Canton, N.C., to see Oma Carr, the manager of the defendant's wood and extract departments, in regard to this contract and the delivery of this wood; that he found that, by reason of the overstocking and congestion of the company's woodyards, it had sought and obtained from the railroad company the promulgation of a...