Federal Lumber Co. v. Reece

• Decision Date: 11 March 1909
• Citation: 116 S.W. 783
• Parties: FEDERAL LUMBER CO. v. REECE et al.
• Court: Kentucky Court of Appeals

116 S.W. 783

FEDERAL LUMBER CO. v. REECE et al.

Court of Appeals of Kentucky.

March 11, 1909

Appeal from Circuit Court, Pike County.

"Not to be officially reported."

Action by the Federal Lumber Company against William Reece and others, in which defendants counterclaimed for damages for breach of contract. From a judgment for defendants on the counterclaim plaintiff appeals. Reversed and remanded for new trial.

F. W Stowers and E. D. Stephenson, for appellant.

Roscoe Vanover, for appellees.

O'REAR J.

Appellees contracted to sell appellant the output of their sawmill in Pike county, which graded shipping culls and better, of certain dimensions and kinds of timber, at prices agreed on in the writing for each grade. The contract stipulated that the lumber cut at the mill was to be estimated as to quantity each month, and then appellant was to advance upon it $11 a 1,000 feet. It was then to be inspected according to the standard of the National Lumber Association Rules, and, as it was measured, paid for according to the agreed prices for the respective grades. Appellees were to haul the lumber from their mill to the railroad at Hellier, in Pike county, and put it on board the cars. Three estimates were made, and there was advanced to appellees $2,714.22. The contract was made in December, 1906. Appellees were to haul and deliver the lumber on the cars as soon as it was inspected and the roads were fit to haul it over. The mill was about 10 miles from the railroad. There was considerable delay in getting out the lumber. In fact, appellees did not deliver any of it. Appellant became impatient at the delay, and, the prices of lumber being on the decline, it arranged with appellees to haul the lumber itself at $10.40 a 1,000 for the oak stuff and $7.40 a 1,000 for poplars. It began the hauling in June or July, and got out 179,172 feet, which according to the inspection and measurements came to $3,108.34. Such disagreements had arisen between the parties that appellees refused to let appellant have any more lumber, whereupon appellant filed this suit against appellees to recover the difference between the sum advanced and paid on hauling $4,505.45, and the value of the lumber received, $3,108.34 as well as for $1,000 damages alleged to have been sustained by the breach of the contract by appellees' failure to deliver the lumber as soon as they could and should have done. In the answer of appellees was presented a counterclaim for damages, in this: it was alleged that appellant had failed to pay installments on the lumber as they became due, in consequence of which appellees were unable to pay their laborers, and the laborers abandoned them, to their damages in $300; again, that appellant had wrongly graded the lumber, placing higher grades in the lower, thus reducing the prices at which it was credited to appellees, to their damage in the sum of $1,240; again, that appellant had ordered appellee to cut certain of the oak logs into two-inch boards, but had subsequently refused to take any of them, leaving on their hands some 50,000 feet of this lumber which they were unable to sell, and which was a loss to them. Damages in the sum of $950 were asked on this score.

The first claim of damages set up in the counterclaim has no existence in law. A failure to pay money on a contract when it is due involves damages, it is true. But the measure is 6 per cent. per annum interest on the payment past due till paid. Sedgwick on Damages, § § 130, 179; Mason v. Biddle, 6 J. J. Marsh. 30; Stockton v. Scobie, 1 J. J. Marsh. 6. The other damages, the quitting of the workmen, and the like is regarded in law as too remote and uncertain.

As to the inspection of the lumber, there was evidence introduced to the effect that one Edwards, an inspector of some 15 years' experience, graded and measured much of the...