Davis v. Chas. F. Luehrmann Harwood Lumber Co.
| Decision Date | 06 December 1922 |
| Docket Number | No. 3163.,3163. |
| Citation | 212 Mo. App. 693,246 S.W. 66 |
| Parties | DAVIS v. CHAS. F. LUEHRMANN HARWOOD LUMBER CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Douglas County; Fred Stewart, Judge.
Action by S. E. Davis against the Chas. F. Luehrmann Hardwood Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
J. S. Clarke, of Ava, and Rassieuer & Long, St. Louis for appellant.
A. M. Curtis, of Hartville, and Lamar & Lamar, of Houston, for respondent.
Action for damages for breach of contract. Verdict and judgment for plaintiff, and defendant has appealed.
The plaintiff was the owner of a large amount of oak timber on land in Douglas county and was engaged in the business of sawing this timber into lumber and selling the same on the market. The defendant was a dealer in hardwood lumber in the city of St. Louis. In January, 1920, John Owens, a purchasing agent of defendant, visited plaintiff at his residence in Douglas county for the purpose of purchasing oak lumber and, as a result, the following contract was executed:
"Greenbrier, Mo., Jan. 16, 1920
"Mr. S. E. Davis—You will enter our order for approximately 400 thousand feet of 1" & 2" Oak Lumber all to be delivered in the year 1920. Shipment to begin about Apr. 1st 1920.
Corn and for 1" lumber $75.00 F. A. S. $52.00 No. 1 Corn $30 No. 2 Corn this lumber is to be placed on sticks at the mill from time to time until shipping dry and we will advance you on estimate from time to time in lots of 40 to 50 thousand at each time $25.00 for these amounts on stick all lumber to be cut standard length 10-12 & 14-16 feet and cut plump thickness and to be moved out to the Hail Road as soon as shipping dry and the above prices is to be paid for all lumber F. O. B. cars Norwood, Mo. Frisco R. R.
"S. E. Davis
"Chas. F. Luehrmann Lbr. Co
"Per John Owens."
This contract was forwarded by Mr. Owens to defendant; and on the next day defendant wrote plaintiff asking that he change the specifications so as to complete the shipments by August 1st. This the plaintiff refused to do, because he thought he would not be able to get the lumber all out by that date. The defendant, then, on January 30th, wrote plaintiff, inclosing an order similar in language to the one taken by Mr. Owens, but with two additions, one providing that not over 25 to 30 per cent, of the lumber should be No. 2 common, and the other providing that the grading should be done in defendant's yards at St. Louis. This order also contained the following: "Confirming order given our Mr. Owens January 16, 1920." The plaintiff wrote defendant refusing to accept this order unless the provision for grading in defendant's yard in St. Louis was eliminated. Defendant answered authorizing plaintiff to erase that provision, and then stated "Mr. Owens is going to inspect this stock at the mill when loaded on cars, and his inspection will be final." Plaintiff then replied, accepting this order. The only difference between this order and the one of January 16, taken by Mr. Owens in person, was the provision that there should not be over 25 to 30 per cent, of No. 2 common oak lumber furnished in filling the order.
After plaintiff had sawed over 49,000 feet of lumber he asked that Mr. Owens be sent to examine it, and that defendant make the advancement of $25 per thousand feet as the contract provided. Mr. Owens went and looked at the lumber on July 16, 1920, and ascertained the number of feet then sawed to be 49,865, but did not grade it or ascertain the number of feet of each grade then in the piles of lumber examined. He took from plaintiff a bill of sale in which it was recited that for value the lumber was sold and delivered to defendant, and a description given of each pile of lumber, which recited the dimensions of the lumber and the number of feet in each pile but contained no specification as to grades. It did show that two piles were only 8 feet in length while the shortest number provided for in the contract was 10 feet. Mr. Owens then had painted on each pile "This is the property of the Chas. F. Luehrmann Lumber Company." This bill of sale was sent to defendant by Mr. Owens. The defendant then wrote plaintiff the following letter:
"July 19, 1920
"Mr. S. E. Davis, Norwood, Mo.—Dear Sir: We have a bill of sale sent in signed by you for some 1" and 2" Oak which was to have applied on our contract, and together with that we have a letter from Mr. Owens stating he was very much disappointed to find that this stock will not run at all according to the contract which we have with you.
Plaintiff refused to cancel the order and insisted on being paid the advancement of $25 per thousand feet as provided by the contract. Some other correspondence followed in which defendant refused to take any lumber of a grade not provided in the contract or make any advancement on the lumber covered by the bill of sale, and returned the bill of sale to plaintiff. The plaintiff ceased sawing the lumber and idled this suit.
The petition is in two counts. The first declares on a breach of the contract of January 16, 1920, and charges that defendant refused to take and pay for lumber after it was sawed under the contract. It also charges in the same count that when Hr. Owens, the agent of defendant, examined the lumber and took the bill of sale in July, 1920, he agreed to take all lumber then sawed that was of different grade from that provided in the contract at $20 per thousand feet, and he accepted for defendant all the lumber then sawed and covered by the bill of sale, and asked pay for the lumber at the contract price.
The second count based damages upon the loss of profits on the amount of lumber provided for by the contract which it was alleged plaintiff was prevented from sawing and delivering by defendant's breach of the contract.
The answer denies that the contract of January 16, 1020, declared upon by plaintiff, was executed by it or by any one having authority to execute it for defendant. Defendant then pleads that the contract of January 3C, 1920, was executed, and...
To continue reading
Request your trial
-
Pack v. Progressive Life Ins. Co.
... ... the court. Darlington Lumber Co. v. Railroad, 243 ... Mo. 224, 147 S.W. 1052; ... Lumbermen's Mut. Cas. Co., 8 S.W.2d 81; Davis v ... Luehrman Hardwood Lbr. Co., 212 Mo.App. 693, 246 ... ...
-
Jackson v. Farmers Union Livestock Com'n
... ... Davis v. Chas. F. Luehrman Hardwood Lbr. Co., 246 ... S.W. 66, ... Gealtey, 147 S.W.2d 631, 639; Friend Lumber Co. v ... Armstrong Building Co., 276 Mass. 361, 177 ... Dubinsky ... Co., 127 S.W.2d 691; Davis v. Luehrmann Co., ... 246 S.W. 66, 69; Grayson v. Heiber Co., 200 ... ...
-
Jackson v. Farmers Union Livestock Commission
...to be found in order for plaintiff to recover and the giving of said instruction constitutes reversible error. Davis v. Chas. F. Luehrman Hardwood Lbr. Co., 246 S.W. 66, 69; Grayson-McLeod Lbr. Co. v. P. Heibel & Sons Mfg. Co., 200 S.W. 96, 97; Dugdale Packing Co. v. Lowden, 160 S.W. (2d) 8......
-
Pack v. Progressive Life Ins. Co.
...64 C.J. 531; Hawes v. Am. Cent. Ins. Co., 7 S.W. (2d) 479; Lorie v. Lumbermen's Mut. Cas. Co., 8 S.W. (2d) 81; Davis v. Luehrman Hardwood Lbr. Co., 212 Mo. App. 693, 246 S.W. 66. There is no evidence to support the instructions. Stout v. Indep. Order of For., 115 S.W. (2d) 32. Mitchell v. C......