Coulter v. B. F. Thompson Lumber Co.

• Decision Date: 24 January 1906
• Docket Number: 1,431.
• Citation: 142 F. 706
• Parties: COULTER et al. v. B. F. THOMPSON LUMBER CO.
• Court: U.S. Court of Appeals — Sixth Circuit

142 F. 706

COULTER et al. v. B. F. THOMPSON LUMBER CO.

No. 1,431.

United States Court of Appeals, Sixth Circuit.

January 24, 1906

H. N Leech, for plaintiffs in error.

F. P Bond, for defendant in error.

The plaintiff below brought this action to recover damages resulting from an alleged breach of a contract for the purpose of oak lumber to be delivered by the defendants at Clarksville, Tenn., witnessed by a letter from the defendant the terms of which were duty accepted by the plaintiff, as follows:

'Clarksville, Tenn., January 28, 1902.

'Dear Sirs: We enter your order for the following order: Three hundred to five hundred thousand feet (estimated) of quartered white oak. Should there be more on the tract of timber, you are to have it at the same price, and will cut your order 4-4, 5-4 and 6-4, all to be put on sticks during the year 1902. Ones and twos six-inch and up wide and ten-inch up long. Price of ones and twos forty dollars ($40.00) per thousand feet. Commons to be four-inch and up wide, eight-inch and up long, price of commons twenty dollars ($20.00) per thousand feet. Stock to be four to five months on sticks. Terms cash, less two per cent as fast as lumber is shipped out, and bill rendered to main office in Grand Rapids, Mich. Above prices are f.o.b. cars this place, lumber to be inspected here by your man.

'Your acceptance of the above will constitute a contract between us.

'Coulter & Merritt.'

Of the quantity of lumber mentioned only two loads, amounting to 21,714 feet, were delivered. The plaintiff alleged that the market value of the undelivered portion of what should have been delivered under the terms of the contract was much higher at Clarksville at the time when it was to be delivered than the contract price, and this difference was what the plaintiff claimed to recover. A verdict was found and a judgment rendered in favor of the plaintiff for $4,174.50. A motion for a new trial was made and refused.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge, having made the preceding statement .

No exceptions were taken upon the trial, either to rulings of the court in admitting or rejecting evidence, or to the instructions given to the jury. After the court's instructions had been given, counsel for defendants moved the court to give the following additional instructions.

'(1) How much of the timber on the tract was quarter-saw stock is best shown by evidence of how much was actually sawed out by a competent sawyer. Such evidence, if made before you, should be accepted in preference to estimates made by any of the witnesses as it stood on the ground.

'(2) If, in February, 1903, plaintiff insisted that the contract was breached, and refused then on that account to accept any lumber then on hand, there could not be any recovery for failure to deliver the amount so on hand.'

These propositions were declined, to which action of the court the defendants excepted. The defendants excepted to the refusal of the court to grant a new trial and have assigned error upon it. In regard to this, we have only to reiterate the rule of the federal appellate courts that the action of the court upon motions for new trials, being matter of discretion, is not the subject review. The circumstances are not so extraordinary as to justify a disregard of the rule. There is nothing, therefore, for us to consider except the refusal of the court to give to the jury the above-mentioned instructions as requested by the defendants. The contract states that the quantity of lumber sold is an 'estimated' quantity. This has reference to a fact, proven by the evidence, that the subject of the contract was the product of the oak timber on a certain tract of land called the 'Rudolph Tract.' To show how much there was of this, and therefore how much should have been delivered to the plaintiff, the latter called expert estimators who had gone over the tract for the purpose of estimating the oak timber suitable for quarter sawing, and who testified that according to their estimates there was as much as the estimate made in the contract. On the other hand, the defendants produced as a witness the sawyer who sawed out the oak timber on the tract, and who testified that not more than 75,000 feet of quartered-sawed lumber could be got out of it. The court could not have granted the first of the requested instructions without usurping the province of the jury. It was not a question of law whether the testimony of one of the parties should be preferred to that of the other, but a question of fact to be submitted to the judgment of the jury. It was perfectly competent for them to determine from the testimony which was the most satisfactory and most safely to be relied upon. This was the view of the court, and its instructions upon this subject were full and correct. After referring to the wide discrepancy of the witnesses upon this subject, the court said:

'Now, whether the one set of witnesses or the other is mistaken about this, the jury must say. And, in determining that, you look to their intelligence, their manner on the stand before you, their opportunity growing out of their experience as lumbermen, and the extent to which they had put calculations of timber to the test. Then look to what they did in this instance as a method of ascertaining the probable quantity of timber, whether it was by their estimation, or by running it off in slips and counting the trees or by counting the trees as a whole. Confessedly, of course, it could be just an approximation or a probable estimate in the very nature of the subject; but there is a very wide difference here. * * * You

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