Brown v. Baird

• Decision Date: 12 February 1897
• Citation: Brown v. Baird, 48 P. 180, 5 Okla. 133, 1897 OK 8 (Okla. 1897)
• Parties: J. L. BROWN v. L. B. BAIRD AND J. P. MCKINNIS, Partners Doing Business as the Reno Lumber Company.
• Court: Oklahoma Supreme Court

1897 OK 8

48 P. 180

5 Okla. 133

J. L. BROWN v. L. B. BAIRD AND J. P. MCKINNIS,

Partners Doing Business as the Reno Lumber Company.

Supreme Court of Oklahoma

Decided: February 12, 1897

Error from the District Court of Oklahoma County.

Judgment in the court below for the appellee in the sum of $ 59.77 for balance due upon material furnished for the erection of a house. The plaintiff in error brings the case up. The opinion states the facts.

Syllabus

¶0 1.MEMORANDUM--How Construed. A memorandum which simply sets forth certain sizes and classes of lumber, fixes the selling price thereof, and does not either expressly or by clear intendment create a warranty that the lumber shall be of a width and thickness different to that usually known to the trade; Held: That the memorandum should be construed as describing the kind of lumber wanted and not as a warranty as to its width and thickness.

2.ACCEPTANCE OF PERSONAL PROPERTY--Effect of. Where there is no express warranty accompanying a description of personal property and the buyer, after inspection and with full opportunity to examine, accepts the property, he is estopped from afterwards claiming damages for failure to comply with the description.

3. DIRECTING A VERDICT--When Error. It is error for a trial judge to direct a verdict when there is a disputed question of fact between the plaintiff and defendant touching the amount which plaintiff should recover.

J. L. Brown, for plaintiff in error.

Selwyn Douglas, for defendant in error.

DALE, C. J.:

¶1 November 16, 1893, L. B. Baird and J. P. McKinnis, partners doing business as the Reno Lumber company, instituted an action in the probate court of Oklahoma county, to recover a judgment against J. L. Brown in the of $ 59.77, balance alleged to be due upon a bill of lumber purchased and received by Brown from the Reno Lumber company. Brown answered to the action, alleging, in substance, that the lumber received by him consisted of dimension stuff, siding, flooring and shingles; that the lumber so received was not of the width and thickness which he had contracted to receive, and that the shingles were less in number than he was charged for, and in his answer alleged that the dimension stuff claimed to be two inches thick and four inches wide and of different lengths, and the siding and flooring also sold as of certain width and thickness, were, in fact, not of the width and thickness claimed for them, but were short on an average of about thirty per cent., and that the shingles, which were bought in bunches and sold to him at two hundred and fifty in a bunch, had, in fact, only one hundred and fifty in each bunch. As a separate and second defense he also alleged that the Reno Lumber company had entered into a combination with the other lumber companies in Oklahoma Territory to prevent or restrain competition in the sale of lumber in this territory, but inasmuch as no proof was offered in support of this allegation, and as the questions therein involved are not raised in the brief of appellant, no further attention will be given to the second defense.

¶2 Judgment was rendered in the probate court in favor of the plaintiff therein for the full amount claimed, and an appeal taken therefrom to the district court, where a trial by jury was granted, evidence heard, and by the court a verdict was directed in favor of the Reno Lumber company in the sum of $ 59.77, the full amount claimed.

¶3 The entire evidence and ruling of the court upon all disputed questions of fact, together with the instructions given, as well as those offered and refused, are preserved in the record and are before us for review. From an inspection of the evidence it appears that in the fall of 1891, the plaintiff in error, J. L. Brown, contracted with the defendant in error, the Reno Lumber company, to purchase lumber for the erection of a house. That at the time of such contract a certain memorandum was made, setting forth the different items needed and fixing the prices thereof. It also appears that in payment for the material contracted for, Brown gave to the Reno Lumber company two promissory notes, aggregating $ 280.80, which were executed by persons indebted to Brown, and which were accepted at their face value by the Reno Lumber company. After the contract was first entered into, Brown from time to time, as needed in the erection of the house, received lumber of the character heretofore mentioned, and in an amount, as claimed by the lumber company, exceeding in value the face of the notes to the extent of $ 59.77, which sum Brown refused to pay. At the trial Brown sought to show that the lumber was not of the width and thickness as stated in the memorandum, and that the shingles, in number, were not delivered in compliance with the terms of such memorandum; also that the bill rendered and executed by the lumber company was excessive, and that the same should be for $ 50.93 instead of $ 59.77, giving to the lumber company all they could rightfully claim upon their account as rendered.

¶4 The trial court excluded all testimony offered by Brown in support of either contention and instructed the jury to return a verdict for the lumber company in the sum stated.

¶5 The plaintiff in error has filed a brief in which he alleges three propositions which, summarized, may be stated as follows:

1. The lumber having been paid for in advance by delivery of the notes, was Brown compelled to accept the customary measurement of lumber dealers, or was he entitled to lumber of the full measurements as stated

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