Continental Lumber Company v. Munshaw & Company

• Decision Date: 10 November 1906
• Docket Number: 14,471
• Citation: 109 N.W. 760,77 Neb. 456
• Parties: CONTINENTAL LUMBER COMPANY, APPELLEE, v. MUNSHAW & COMPANY, APPELLANT
• Court: Nebraska Supreme Court

109 N.W. 760

77 Neb. 456

CONTINENTAL LUMBER COMPANY, APPELLEE, v. MUNSHAW & COMPANY, APPELLANT

No. 14,471

Supreme Court of Nebraska

November 10, 1906

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Reversed.

REVERSED.

A. H Murdock, for appellant.

E. R Leigh, contra.

OLDHAM, C. AMES and EPPERSON, CC., concur.

OPINION

OLDHAM, C.

This action was originally instituted in the county court of Douglas county by the plaintiff, Continental Lumber Company, against the defendant, Munshaw & Company, to recover the remainder alleged to be due on a car-load of lumber, shipped F. O. B. to defendant at South Omaha, Nebraska. Defendant answered, admitting that it had ordered a car-load of No. 2 shiplap lumber from plaintiff at the price per thousand feet alleged in plaintiff's petition; that, when the lumber was received and inspected, about half the load was under grade and in a damaged condition; and that for this reason defendant refused to receive the lumber, and so notified plaintiff, and still held the lumber subject to plaintiff's order. Each and every other allegation in plaintiff's petition was denied, and defendant asked judgment on a counterclaim for the amount of freight paid before the lumber was inspected. Plaintiff replied with a general denial, and alleged that, defendant having filed a claim for damages for the inferior condition of the lumber shipped, it was by that act estopped from a rescission of the contract of purchase. At the trial in the county court defendant had judgment, but on an appeal to the district court, where the same issues were tendered, the court, after the testimony was all in, directed a verdict for the plaintiff, and entered judgment on the verdict. To reverse this judgment defendant has appealed to this court.

As a verdict was directed for plaintiff, our attention must be directed to the answer filed and the evidence offered by the defendant in support thereof; and, as the answer on its face shows a sufficient reason for the rescission of the contract, we will pass to a consideration of the testimony offered. The plaintiff alleged that the order was made subject to the rules of inspection of the Southern Lumber Manufacturers' Association, and that these rules were in general use, and known to and acquiesced in by all retail lumber dealers. Defendant denied this allegation, however, and offered evidence tending to show that the lumber was ordered by Mr. Munshaw, a member of the defendant firm, from one of plaintiff's traveling salesmen, with the agreement that the lumber was to be up to the grade of that of other associations; that he (Munshaw) refused to sign any written order for the lumber, which might contain conditions that he did not understand; that under this arrangement he ordered two car-loads of boards and one carload of No. 2 shiplap; that the two car-loads of boards arrived first, and were unloaded and found to be according to the representations, and that defendant accepted the same; that, when the third car arrived, and after defendant's foreman had paid the freight, which was required by a rule of the railroad company at South Omaha before an inspection was permitted, the lumber was unloaded, and, on an inspection, over half of it was found to be of a very inferior quality and below the grade of No. 2 shiplap. The evidence of lumber dealers in Omaha was also introduced in support of defendant's claim that the lumber was under grade. When the lumber was received, after its inspection, defendant sent the following communication to plaintiff: "South Omaha, Neb., Dec. 17, 1903. Continental Lumber Co., Houston, Tex. Gentlemen: We have just unloaded car No. 2,210 M., K. & T. and find 592 pcs. 8" 14' shiplap, and 589 pcs. 8" 12' shiplap in very bad condition, so badly blued they are almost rotten. Will have to charge you back $ 3 per M on above number of pieces or 10,237 ft. and make a claim of $ 30.71. Kindly send us credit memorandum for same. We have piled this stuff up separate, and would be glad to show it to anyone you might send to see it. Very respectfully, Ed Munshaw & Co."

In response to this letter plaintiff, on December 19, 1903 wrote to the defendant the following: "Your favor of the 17th, and we are surprised that you would make such a modest claim on a single car of lumber, as you desire to make against car M., K. & T., 2,210. We are not agreeable to the claim you file and you will therefore hold the entire shipment intact--subject to our order, unless you are prepared to pay for the same as invoiced. We will send an official inspector right up to Omaha, Neb., to investigate the matter." Mr. Munshaw testifies that on the receipt of this letter defendant piled all the lumber received in the car in dispute in separate piles in its yard, and still holds it there subject to plaintiff's order. On December 22, 1903, defendant wrote to plaintiff, as follows: "Yours of the 19th at hand. We are not surprised in the least that you are not agreeable to the claim that we made on car No. 2,210 M., K. & T.,...