Davenport Ladder Co. v. Edward Hines Lumber Co.

• Citation: 43 F.2d 63
• Decision Date: 18 August 1930
• Docket Number: No. 8845.,8845.
• Parties: DAVENPORT LADDER CO. v. EDWARD HINES LUMBER CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

43 F.2d 63 (1930)

DAVENPORT LADDER CO. v. EDWARD HINES LUMBER CO.

No. 8845.

Circuit Court of Appeals, Eighth Circuit.

August 18, 1930.

Wayne G. Cook, of Davenport, Iowa (C. D. Waterman, of Davenport, Iowa, on the brief), for appellant.

H. B. Betty, of Davenport, Iowa (Wm. S. Bennet, of Chicago, Ill., Walter M. Balluff, Betty & Betty, and Cook & Balluff, all of Davenport, Iowa, on the brief), for appellee.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

In this case appellee, as plaintiff, brought action against the appellant to recover a balance claimed to be due for lumber sold. The parties will be designated as they appeared in the lower court. The plaintiff alleged that on the 14th day of May, 1927, the defendant entered into a written contract for the purchase of lumber. A copy of the instrument claimed to be the contract was attached to the petition as an exhibit and made a part thereof, and it was alleged that, pursuant to the written order or contract, the plaintiff shipped and delivered certain of the lumber therein described, and that the total purchase price remained due and unpaid. The defendant specifically denied that the written order contained the complete contract between the plaintiff and defendant, that the lumber shipped by the plaintiff to the defendant was not the lumber specified nor agreed to be furnished, and that, after defendant discovered this fact, it refused to accept further lumber, offered to return that already received, and canceled the balance of the alleged order. It is then pleaded that the plaintiff made certain oral representations that the lumber to be shipped defendant would be suitable for the purpose of manufacturing tool chests to fulfill a specific contract entered into by the defendant with the Moline Pressed Steel Company of Moline, Ill., that the defendant had knowledge of the specific purpose for which the material was required, but that the lumber furnished was not fit for such purpose, because it was filled with moisture from which shrinkage resulted, rendering it impossible for defendant to make tool chests therefrom so as to conform with the requirements of the order of the Moline Pressed Steel Company. By way of counterclaim, the defendant alleged a breach of warranty, in that the plaintiff, knowing the specific purpose for which the lumber was required, furnished lumber unfit for that purpose, the defendant having relied on plaintiff's skill and judgment to furnish lumber reasonably fit for the purpose for which the defendant required the same, and affirmative judgment on this counterclaim was demanded in the answer. The affirmative allegations in the answer were put in issue by reply on behalf of the plaintiff. On trial of the action, the plaintiff introduced an order made out on one of its printed forms which contains, in addition to a description of the materials, the following provisions:

"The above order is taken subject to the acceptance or rejection by seller's Home Office within five (5) days from date of receipt hereof, to be forthwith confirmed to the buyer. Said order is accepted subject to the terms, conditions and provisions printed on the back of this order."

Certain printed provisions appeared on the back of the written order, among them the following:

"Only orders and contracts signed by the buyer and accepted by the Home Office of the seller are binding."

The order was made out in duplicate, signed by plaintiff's salesman, and a copy furnished to defendant; it was never signed by the defendant, although it was accepted by the plaintiff and certain of the materials therein described were shipped to the defendant.

It appeared from the evidence that the defendant was engaged primarily in the manufacture of ladders; that it also manufactured certain ironing boards and certain rough packing boxes; that it had never manufactured tool chests or similar boxes, and in its usual business did not have occasion to distinguish between kiln-dried and air-dried lumber, although its president and manager had a general notion of the kiln-drying process and its purpose, but had had no personal experience with the process. The defendant had purchased lumber of the plaintiff for a period of twenty-five years, and had been satisfied with its dealings. Plaintiff's salesman had been calling on defendant for several years prior to the transaction in question. In April, 1927, plaintiff's salesman, one Oatman, called on defendant's president and manager, one Hayward, advising him that the Moline Pressed Steel Company was in the market for tool chests to be used in connection with their line of children's tools; that another concern had consulted Oatman with reference to the lumber requirements and was figuring on this proposition; that the other company was not, in his judgment, equipped to get out the chests, and Oatman suggested that Hayward negotiate for this business. Oatman was already familiar with what the Moline Pressed Steel Company wanted, and kept in close touch with the situation, personally assisting the defendant in working out the details and in preparing sample tool chests for exhibit to the Moline Pressed Steel Company, which sample chests were made up of kiln-dried lumber. He personally participated in these preparations and negotiations, went over the specifications in the first proposal submitted, saw also the final proposal submitted before the order for lumber was made out, which was May 14, 1927. Both Oatman and plaintiff's vice president knew that the chests desired by the Moline Pressed Steel Company were high quality chests. The order for lumber was made out at a conference between Oatman and Hayward on May 14th, 1927. The list of materials was prepared by Oatman, and their suitability was discussed at and prior to that time. In this connection the following appears in the testimony of Hayward:

"Near the close of our session I made the remark to Mr. Oatman that I supposed this was kiln dried lumber that they proposed to furnish. Mr. Oatman said `No.' `Well,' I said, `Why not?' `Well,' he said, `This lumber is dry,' and he made the remark, he said `You don't care if this lumber is dry whether it is kiln dried or air dried.' I said, `No, I don't care whether it is kiln dried or air dried just so the lumber I get is suitable to go into these chests that we are making.' Mr. Oatman's reply was that we need not worry about the quality of the lumber."

Hayward also testified that he told Oatman that he was going to take his lumber and accept his prices, "and expected them to furnish the lumber; that we are furnishing plant and equipment." Hayward, on behalf of the defendant, with reference to a conference which he had with the vice president of the plaintiff, testified:

"I told Mr. Burgess one of the reasons why he should grant this request (with reference to the acceptance of trade acceptances from the Moline Pressed Steel Company), that Mr. Oatman had brought this proposition to us, and that we were not going anywhere else for the lumber; that we considered that this was their order; that it was their business and that in view of these facts we felt that they were furnishing the lumber and we were furnishing the rest — the equipment and labor; that they could go further than they ordinarily would in order to also bear a share of the credit risk."

There was also in evidence a letter from Mr. Oatman to Hayward, written while these negotiations were pending, in which he says, among other things, as follows:

"I am in receipt of your very nice letter of April 28th and trust prior to receipt of this letter that you will wire me to proceed along the lines we have mentioned, with the lumber for the Moline Pressed Steel Company tool boxes. * * *

"I realize that this matter is in good hands, and I have every faith in your closing with him Monday, and you may depend on it that we will satisfy you in every way on the lumber. (Italics ours.)

"Thanks for all the interest you have shown in this matter, as it has taken much of your time and effort, and I think we both are entitled to a satisfactory decision from Mr. Lundahl. If necessary I will come down again to see you, otherwise I will enter the business when you wire me along the lines discussed, sending you copy of my order."

It was in effect conceded that the lumber furnished was not suitable for the purpose intended. When the order was signed by the salesman and a duplicate copy delivered to the defendant, the terms and conditions of payment had not been agreed upon and were not included in the order, nor did it contain, at that time, any schedule as to the time of deliveries, and the defendant's testimony was to the effect that these provisions never, with his knowledge, became a part of the order. There was other testimony as to details, not important to the issues as presented. In this condition of the testimony, the plaintiff moved for a directed verdict on the ground (1) that the contract between the plaintiff and defendant was complete and in writing; (2) that it contained no express warranty that the lumber furnished was suitable for the purpose claimed by the defendant; (3) that the plaintiff had delivered the kind and character of lumber designated in the written contract, up to the point of cancellation; (4) that the evidence showed that the defendant selected a recognized and established grade of lumber well known to the trade, being a specified article described in the written contract, and that the plaintiff furnished a known, described, and definite article as specified in the contract, and hence there was no implied warranty of fitness, even though the buyer disclosed the purpose for which the article was purchased. This motion was granted, and verdict and judgment were entered accordingly.

The Uniform Sales Act was in force both in the state of Iowa and the state of Illinois at and prior to the time of the transaction involved in this...