Action
by C. R. Shaw Wholesale Company against A. Hackbarth, doing
business as the Lapwai Lumber Company, for damages for breach
of a contract. Judgment for plaintiff, after trial by the
court without a jury, and defendant appeals. Affirmed.
Plaintiff
brings this action for damages for breach of a contract. The
cause was tried by the court without a jury. From a judgment
in favor of plaintiff, defendant appeals.
The
material facts alleged are as follows: Plaintiff is an Idaho
corporation. Defendant, A. Hackbarth, is doing business as
the Lapwai Lumber Company, in Wallowa county, Or. About April
4, 1917, the defendant--
"contracted
and agreed with the plaintiff to sell plaintiff 250,000 feet
8/4 shop lumber, surfaced two sides, of grades No. 3 and
better at the quoted and agreed price of $26 for No. 3, $32
for No. 2, and $40 for No. 1; delivery to be made by
September 15, 1917, on freight rate of 52 cents."
The
defendant neglected and refused to deliver any part of the
lumber at any time. At the time agreed upon for the delivery
of the lumber, and since, the market value thereof per 1,000
feet was as follows: $33.50 for No. 3; $40.50 for No. 2; and
$50.50 for No. 1. Plaintiff was damaged in the sum of $2,000.
A general demurrer was filed to the complaint, which, upon
being overruled, defendant answered, admitting the corporate
character of plaintiff, and the name in which defendant was
doing business, and denied the other allegations of the
complaint. For a further answer the defendant pleaded that no
note or memorandum in writing expressing the consideration of
the alleged contract was ever subscribed by the defendant
that no part of the lumber alleged to have been contracted
for was ever received or accepted by plaintiff, or paid for
by plaintiff; and that the alleged contract is void within
the statute of frauds. The reply put in issue the new matter
of the answer. Upon the trial plaintiff sought to prove, over
the objections and exceptions of counsel for defendant, the
contract by the production of correspondence between the
plaintiff and defendant, the gist of which, so far as
material is as follows:
Plaintiff's
Exhibit A.
"Enterprise
Oregon, Mar. 21, 1917.
"C
R. Shaw Wholesale Co., Boise, Ida.--Gentlemen: * * * I
haven't any lumber to offer at the present time and
regarding the shop lumber I would be willing to contract
providing I got the price I am holding it for this on a 52¢
rate
5/4 and
6/4 #1, $38.00.
5/4 and
6/4 #2, $30.00.
5/4 and
6/4 #3, $26.00.
$2.00
more for 8/4 #1 and 2 S2S.
"I
expect this will look rather high to you, but according to
what we have to pay for manufacturing our material this is
only a fair price, and will stay with these prices until I
see that conditions changes and I prefer selling 8/4 as I
have contracted several hundred thousand of the 5/4 and 6/4
to be shipped Aug. & Sept.
"Yours
truly, Lapwai Lumber Co,"
Plaintiff's
answer reads:
Plaintiff's
Exhibit B.
"March
22d, 1917.
"Lapwai
Lumber Co., Enterprise, Oregon--Gentlemen: Your favor of
March 21st at hand regarding shop. We would be willing to
take the shop lumber at the prices you quote, although you
are above the market on No. 2. However we would take our
chances on the No. 2. Now you let us know just how many
thousand feet of each thickness 5/4, 6/4 and 8/4 you will let
us have at the prices you name, and we will send you a
blanket order for such amounts. In accepting such an order
it would have to be definitely understood that you would
furnish the full amounts of each thickness, because we will
make contracts with our customers to furnish exactly those
amounts, and we will have to depend upon you furnishing the
stock you agreed to furnish.
"Just
at this time there is an extreme scarcity of shop lumber
especially No. 2, but we are inclined to think that as the
mills come on the market with the new cut, prices will more
likely decline, and we think that you are making a good trade
by selling outright at the prices you are now making. However
we want to keep in touch with you and get started by making
this deal on the shop. A little later on, if you are willing,
we would consider some kind of a proposition of a million
feet of yard stock, common and finish. * * *
"Yours
very truly,
"C.
R. Shaw Wholesale Co."
The
next letter reads thus:
Plaintiff's
Exhibit C.
"Enterprise,
Oregon, April 3, 1917.
"C.
R. Shaw Wholesale Co., Boise, Idaho--Gentlemen: Your letter
of the 22d received. I would be willing to let you have about
250 thousand 8/4 #3 and better shop at the prices I quoted
you, but in case they should change the freight rates,
different arrangements would have to be made at such time.
This is not all the shop I will have, but it is all I want to
contract at the present time.
"Yours
truly,
"Lapwai
Lumber Company,
"By
A. Hackbarth."
Plaintiff
then wrote defendant as follows:
Plaintiff's
Exhibit D.
"April
4th, 1917.
"Lapwai
Lumber Co., Enterprise, Oregon--Gentlemen: Your favor of the
3d at hand, and are inclosing order for the 250 M. ft. of 8/4
shop. This we expect to ship all to one customer, and will
send you shipping instructions in ample time.
"The
writer is planning a trip to Eastern Oregon and will
undoubtedly see you the latter part of next week.
"Yours
truly,
"C.
R. Shaw Wholesale Co."
Mr. J.
G. Doerr, an officer of the plaintiff company, testified in
explanation of the order inclosed, thus:
"This
is a substantial copy of that order. The original sheet of
that order, of course, has printed matter on, which the
duplicate copy does not have--does not carry. It shows who it
is addressed to."
A copy
of the order follows:
Plaintiff's
Exhibit E.
"No.
5180.
"April
4th, 7.
"C.
R. Shaw Wholesale Co.
"To
follow by Sept. 15th, 52¢ rate, reg. 250,000 8/4 #3 shop and
better S2S
#3 @
26.00
#2 @
32.00
#1 @
40.00
"Lapwai
Lumber Co., Enterprise, Oregon.
"As
per your letters March 21st and April 3d."
In
about a month and a half defendant wrote plaintiff this
letter:
Plaintiff's
Exhibit F.
"Enterprise,
Oregon, May 16, 1917.
"C.
R. Shaw Wholesale Co., Boise, Idaho--Gentlemen: I think I
will have to raise the price on the shop mentioned, which was
about 250,000 feet, on account of the war, as I have to raise
my contractors about 1/3 and it is no more than right to do
the same with you and if you have it contracted tell the
other fellow the same as we were not figuring on war at that
time.
"Yours
truly, Lapwai Lumber Co.
"By
A. Hackbarth."
Defendant
also wrote a letter which reads thus:
Plaintiff's
Exhibit G.
"Enterprise,
Oregon, June 4, 1917.
"C.
R. Shaw Wholesale Co., Boise, Ida.--Gentlemen: Your letter of
the 29th received regarding the 2X12 at $14. I don't want
any of it at that price as I can get considerable more money
of course, I suppose you are figuring this on a shop deal but
I want you to strictly understand that I am doing with you
the same as I do with my contractors. I had a contract let
for my logging, and also he was under bonds to furnish the
logs, but I did not see that he could do it for the price he
was getting after everything got as high as it is now, and
looks as if it may go higher. I have raised my contractor 1/3
and all other expenses are nearly 1/2 so don't
mention the shop any more as I will not furnish it at all
unless it is down at that price whenever it is dry.
Whenever it is dry I want the market price whether it is high
or low and if it is too low I will not sell any and will not
manufacture any more. I am willing for you to handle my stock
but do not want to sell for any such price as you offered me
for the 2-inch.
"Yours
truly, Lapwai Lumber Co.
"By
A. Hackbarth."
(We
underscore the material part.)
Plaintiff
wrote defendant thus:
Plaintiff's
Exhibit H.
"October
13, 1917.
"Lapwai
Lumber Co., Enterprise, Oregon--Gentlemen: Please ship as
soon as possible to ourselves at Oshkosh, Wisconsin, the
250 M. ft. of 2"' shop on our order No. 5180 of
April 4th. Please route shipments OWR&N OSL UP CM & STP.,
and advise about how fast our cars will go forward.
"Yours
truly,
"C.
R. Shaw Wholesale Co."
Plaintiff
also wrote the following letter:
Plaintiff's
Exhibit I.
"December
6th, 1917.
"Lapwai
Lumber Co., Enterprise, Oregon--Gentlemen: Please let us know
when you intend to ship the 2"' shop to Oshkosh on
our order No. 5180 of April 4th, and oblige
"Yours
truly,
"C.
R. Shaw Wholesale Co."
Defendant
offered in evidence the following letter:
Defendant's
Exhibit 1.
"Enterprise,
Oregon, Aug. 2, 1917.
"C.
R. Shaw Wholesale Co., Boise, Ida--Gentlemen: Your letter
of the 28th received regarding the C select. We do not want
to sell this big amount to one person as I think we will
run out of clears and cannot fill our yard orders.
Regarding the shop lumber it seems to me that you are
figuring on pretty low prices, but as you are always
mentioning the 250,000 which you are figuring you would be
entitled to, but as conditions have changed as I told you
before I don't think you would be entitled to it, and
in this way I will let you have 200,000 8/4 1, 2 and 3 shop
at the price which you mentioned July 30th, allowing you $1
commission, but I must know within the next week as I am
figuring on going East, and if you cannot handle it perhaps
I can dispose of it on my trip.
"Yours
truly, Lapwai Lumber Co.,
"By
A. Hackbarth."
Plaintiff's
counsel objected to this letter, as not pertaining to the
transaction contained in the letters forming the contract
which objection was sustained and exceptions...
