Burton v. Berthold

• Decision Date: 15 December 1908
• Docket Number: 79.
• Citation: 166 F. 416
• Parties: BURTON v. BERTHOLD et al.
• Court: U.S. Court of Appeals — Second Circuit

166 F. 416

BURTON v. BERTHOLD et al.

No. 79.

United States Court of Appeals, Second Circuit.

December 15, 1908

Appell & Taylor (George H. Taylor, Jr., of counsel), for plaintiff in error.

Hyland & Zabriskie (Nelson Zabriskie, of counsel), for defendants in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

NOYES Circuit Judge.

In this action the defendants in error, who were the plaintiffs below and are hereinafter so designated, sought to recover from the plaintiff in error, hereinafter called the defendant, the price of certain lumber sold and delivered, or attempted to be delivered. The plaintiffs are wholesale lumber dealers located in St. Louis, Mo., and the defendant is a wholesale lumber dealer located in New York City. On April 6, 1904, the defendant received from E. W. McClave & Son of Newark, N.J an order for 200,000 feet of long leaf yellow pine lumber 'sound and square.' The defendant contracted with the plaintiffs to fill this order at a lower price; the difference constituting his profit. This contract is evidenced by a written order and a letter of acceptance. On April 14, 1904, the defendant sent the order, specifying the amount required, the price, sizes, place of delivery, and other particulars, designating the lumber as 'sound square edge, rough, long leaf yellow pine' and concluding with these words: 'Ship no waney stock'-- i.e., timber not square-edged. On April 19, 1904, the plaintiffs wrote the defendant unconditionally accepting the order, but inquiring whether his customer would be willing to have the lumber dressed, instead of in the rough, as specified in the order. This modification, however, was not agreed to.

The plaintiffs passed the order on to be filled by certain millmen in practically the same form, except presumably as regards price, as it was received from the defendant. On May 10, 1904, plaintiffs wrote the defendant that they were receiving complaints from the mills relative to the specification of the contract regarding wane, but saying:

'We have given the mills the exact specifications which we have received from you.'

The plaintiffs further suggested that the defendant inform his customer of the difficulty in securing sticks of the required size absolutely free from wane. They also stated that they were making the inquiry concerning wane principally because they had in view future large orders, and:

'If your customer insists on the timbers being absolutely free of wane, we hardly think we could undertake any future orders of this character.'

On May 12, 1904, the defendant wrote to the plaintiffs that he had had an understanding with his customer regarding the matter of wane, and had confirmed it in writing to him as follows:

' * * * I have ordered this stock from the mill to be cut free from wane; but, although I am ordering it that way, it is understood that, should any stock come in admitting a small amount of wane, you are not to be severe on the inspection in this respect. * * * In other words, on this big class of timber it is understood that we are to have fair and liberal treatment as regards inspection.'

The letter then went on to say:

'You will see, therefore, the understanding I had with my customer, and upon the arrival of the first car I will go personally and see that the lumber is inspected in accordance with this understanding. I do not wish, however, to change any of the terms or conditions of my order No. 1,744, as I consider it a dangerous matter to open up the question of wane with the mills, but propose that you shall have every advantage in inspection that I can secure for you.'

On May 17, 1904, the plaintiffs wrote to the defendant, stating in substance that they were glad to know that the defendant had made provisions with his customer for accepting timber containing a certain amount of wane, and saying:

'Our letter of the 10th instant was written with a view of getting your customer to accept timbers containing a certain amount of wane on future orders, as we hardly believe we could get any more of these timbers on the same specifications as order No. 1,744. We think we could get at least 200,000 feet more in the course of the next 90 days at the same price, provided the specifications were made a little more lenient.'

On May 19, 1904, the defendant wrote the plaintiffs acknowledging receipt of their letter of May 17th, and saying:

'You know the conditions and understanding between my customer and myself, and I will see to it that we get as liberal treatment as possible. At the same time I could not get him to make a concession in writing, as he is of the opinion that the mills would take

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