Coombs v. J. H. Tschudy Hardwood Lumber Co.

• Decision Date: 16 July 1917
• Docket Number: No. 18527.,No. 18537.,18527.,18537.
• Citation: 197 S.W. 342
• Parties: COOMBS v. J. H. TSCHUDY HARDWOOD LUMBER CO. (two cases).
• Court: Missouri Supreme Court

197 S.W. 342

COOMBS v. J. H. TSCHUDY HARDWOOD LUMBER CO. (two cases).

No. 18527.

No. 18537.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Rehearing Denied July 27, 1917.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Edwin Coombs, administrator of the estate of B. F. Coombs, deceased, against the J. H. Tschudy Hardwood Lumber Company. From the judgment, both parties prosecute cross-appeals. Affirmed.

The case is one in five counts for damages for alleged breach of contract for the sale and delivery of lumber and for lumber delivered thereunder, and it was tried in the circuit court of Jackson county. The hearing was originally had before a referee, who found in favor of plaintiff upon each of his five counts, and against defendant on certain counterclaims which it filed. Upon the exceptions of defendant the case was tried anew by the circuit court, and the findings of the referee for plaintiff were overruled, and the findings of the referee for defendant upon the latter's counterclaims were sustained, and judgment rendered against both plaintiff and defendant, apportioning the costs equally between the two. From this judgment both the plaintiff and the defendant have prosecuted cross-appeals to this court, which upon motion were consolidated, and the cases submitted to and heard by us as one case.

In the view we take of it only a cursory statement of the facts is necessary. The case grew out of a certain written contract, dated May 25, 1907, entered into between B. F. Coombs, now deceased (and who dying since the trial nisi, his estate prosecutes and defends herein by his administrator), and the J. H. Tschudy Hardwood Lumber Company, a corporation, engaged at Kansas City, Mo., in the lumber business. This contract, omitting only the date and the signatures of the contracting parties, which are not pertinent, reads thus:

"We hereby agree to sell to the J. H. Tschudy Hardwood Lumber Company the oak lumber on our 1,400 acres of land near Cabool, Mo., at $15 per thousand feet f. o. b. cars Cabool, Mo., to be sawed, piled on sticks, and loaded on cars, or hauled and loaded green, as suits J. H. Tschudy Hardwood Lumber Company's orders. J. H. Tschudy Hardwood Lumber Company to give the orders from time to time and we, B. F. Coombs & Bro., together with J. H. Tschudy Hardwood Lumber Company, to have this work done as expediently as possible, in accordance with the prices and terms of the contract now existing with W. S. Haddock and Reed Bros. It is further understood that special orders of 18 feet and longer stuff shall be paid for at the rate of $17 per M. ft. f. o. b. cars Cabool, Mo. This contract includes the 1" stock to be sawed plump thickness, which is made from this date in squaring up logs; it being understood that no more inch will be made than is necessary for this purpose.

"Terms: Settlement each 60 days, unless B. F. Coombs & Bro. shall request earlier settlement. Prices named above are net."

After the execution of this contract, plaintiff, through his subcontractors, Haddock & Reed Bros., began sawing and shipping oak lumber to defendant. Subsequently a dispute arose as to whether the contract set out above included some 25 stacks of dried lumber, which was already sawed and "on sticks" in the lumber yard of plaintiff at the time the above written contract was made; plaintiff contending that it did include this stock, and defendant contending to the contrary. Upon this question arising, defendant refused to pay plaintiff for some nine cars of the old stock, which had been shipped to defendant, and for some five cars of new lumber admitted to have been sawed under the above contract, and plaintiff thereupon sued defendant in five separate counts for damages for the breach of such contract, for consequential damages arising therefrom, and to enforce payment for the lumber delivered to defendant as aforesaid.

Defendant answered, denying the breach of the contract, and denying the construction put upon said contract by plaintiff, making a tender of the sum due by it to plaintiff for the five cars of lumber received by it under the contract, but not paid for, and denying any liability on account of the nine cars of old stock,...