Forest Products Co., Inc. v. Dant & Russell

• Decision Date: 23 March 1926
• Parties: FOREST PRODUCTS CO., INC., v. DANT & RUSSELL, INC.
• Court: Oregon Supreme Court

244 P. 531

117 Or. 637

FOREST PRODUCTS CO., INC., v. DANT & RUSSELL, INC.

Supreme Court of Oregon

March 23, 1926

Department 2.

Appeal from Circuit Court, Multnomah County; John S. Coke, Judge.

Action by the Forest Products Company, Inc., against Dant & Russell Inc., wherein defendant counterclaims. From a judgment for defendant, plaintiff appeals. Reversed, with directions.

This is an action for damages for breach of contract. The complaint consists of four alleged causes of action. The cause was tried by the court and a jury. The jury returned three verdicts: First, a special verdict: "Did plaintiff and defendant enter into a contract as set forth in the complaint in the first cause of action? We answer, 'No.' " Second, "a general verdict for plaintiff on its second cause of action in the sum of $10,450." Third, "a general verdict in favor of defendant upon its counterclaim in the sum of $8,000."

The jury also found a verdict in favor of defendant on the third and fourth causes of action set forth in the complaint. Both parties moved for judgment on the verdict.

The circuit court, deeming the special verdict inconsistent with the general verdict for plaintiff on its second cause of action in the sum of $10,450, refused judgment on the general verdict for plaintiff on this cause of action, and rendered judgment in favor of defendant on its counterclaim for $8,000. Plaintiff appeals.

W. C Bristol, of Portland (F. E. Grigsby, of Portland, on the brief), for appellant.

E. V Littlefield, of Portland (Joseph, Haney & Littlefield, of Portland, on the brief), for respondent.

BEAN J. (after stating the facts as above).

The first cause of action was based upon a breach of an alleged contract, and plaintiff claims damages for the following sums expended in the improvement of its plant and machinery for the manufacture of veneers, namely, for labor, superintendence, engineering and overhead, $18,500; materials, lumber, findings, and fixtures for kilns, yard, and mill, $12,850; for boiler, motor, and fan, $3,300; for wires and clips for kilns, $1,000; aggregating $43,150 demanded on the first cause of action.

In the second cause of action plaintiff claims a contract for the sale of 50 carloads of veneer, and that the defendant breached the contract to its damage in the sum of $34,375.

Upon the third cause of action plaintiff claims that there was a contract in existence for the second 50-carload lot of veneers and that the defendant breached the contract to plaintiff's damage in the sum of $34,375.

Upon the fourth cause of action the plaintiff claims that the defendant prevented plaintiff from completing a contract which it had with the Haskelite Manufacturing Corporation for the sale of veneer, and that defendant failed and refused to take "fall-down" material that accrued in the performance in the Haskelite contract, and that plaintiff was thereby damaged in the sum of $14,000.

The defendant denies most of the allegations of plaintiff's complaint, particularly that in regard to the contract alleged in the first cause of action, and sets forth a counterclaim to recover from the appellant the sum of $8,000 on account of a loan made to plaintiff.

The complaint in this case is very lengthy, consisting of some 34 pages of printed matter. It appears from the record that the plaintiff was operating a small mill near Linnton, Or., manufacturing veneer. Some of its products, which are not involved in this case, were sold to the defendant, and there were negotiations or plans, between the plaintiff and the defendant, looking toward the transaction of future business, and defendant encouraged plaintiff to enlarge its plant and construct dry kilns. It had formerly been air-drying its material. Defendant, in order to assist plaintiff to improve its plant, loaned plaintiff $8,000, $5,000 of which was advanced August 30, 1920, and $3,000 advanced September 30th of that year.

Defendant was exporting Pacific coast lumber and veneer and there were negotiations looking toward defendant's taking all of the manufactured veneer from plaintiff's mill. Plaintiff in its first alleged cause of action alleged, among other things:

"The defendant agreed to and did help plaintiff and advanced to plaintiff money in the aggregate amount of $8,000, to be repaid out of 100 or more cars of manufactured veneer to be produced by plaintiff, so that plaintiff could repay said $8,000 at the rate of $80 per car thereof in 50 car lots or quantities for defendant. * * *"

It is the contention of plaintiff that the defendant agreed to purchase all of the veneer manufactured at its mill up to 100 or more carloads; that, on account of the refusal of the defendant so to do, it is liable for the whole cost of improving the plant of plaintiff, as itemized above.

The jury, by its special verdict, found that there was no contract made between plaintiff and defendant, as alleged in plaintiff's first cause of action. According to the testimony we do not see how the jury could have found otherwise.

The second cause of action, set forth in plaintiff's complaint, is based upon a different foundation. After alleging in regard to the general manner of running the business and some matters of inducement, it is alleged that on the 28th day of August, 1920, the defendant gave plaintiff its certain writings in words and figures, set forth in the complaint, the first of which consists of a letter, which reads, in part, as follows:

"Portland, Or., 8/28/20.

"Forest Products Co., City.--Gentlemen: We are inclosing herewith our order No. 688-B-2, for 50 carloads fir, spruce and hemlock, wire-bound box veneer, log-run. This stock is to be shipped kiln dried, within four months.

"It is also understood that we are to get all of the wire-bound box veneer that you will manufacture during the period it is necessary for you to ship this stock. * * * (Here follows some directions as to manufacturing and kind of material.)

"Yours truly, Dant & Russell, Inc.,

"By Glen W. Cheney [Signed].

"GWC/PL

"Accepted: Forest Products Co.,

"By R. L. Rankin [Signed]."

The order No. 688-B-2, dated at Portland, Or., August 28, 1920, accompanying this letter, directs:

"Forest Products Co. ship to National Box Co., Chicago, Ill., * * * 50 carload rotary cut veneer (fir, spruce and hemlock)."

The order continues to specify the prices per thousand, surface feet, and dimensions of the material and other details and was signed by the defendant, "Dant & Russell, Inc., per Glen W. Cheney." It was accepted by "Forest Products Co., by R. L. Rankin, Vice Pres. Mgr."

It is further alleged in the complaint that on October 19, 1920, the defendant wrote to the plaintiff to the effect that, on account of business conditions, "until further advice would ask that you defer shipment on any wire-bound box veneer until further notice." Defendant further stated that it was working on several new prospective customers, and it might be that they could induce them to start taking some of this stock quickly; in which case they would advise plaintiff. The plaintiff then alleges as follows:

"And after said letter was received by plaintiff, and defendant had so notified plaintiff aforesaid in writing, notified plaintiff to desist therefrom until further notice, and suspended all performance under said contract, and defendant failed and neglected to perform and delayed, deferred, and put off from time to time any performance whatever upon its part to and until on or about the 1st day of June, 1921, when the defendant refused to perform in any way whatever; * * * that, had defendant taken delivery as contracted of said 50 carloads of fir, spruce, and hemlock wire-bound box veneer, log-run, pursuant to said contract, plaintiff would have earned, over and above the cost of production and delivery to and for defendant, $687.50 for each car thereof, and plaintiff's actual profits would have been on said 50 carloads of said veneer as specified $34,375; that the conduct, acts, and doings of defendant hereinbefore set forth have caused plaintiff damage, and defendant, in so conducting, acting, and doing the things aforesaid has and did damage the plaintiff in the sum of $34,375 profits plaintiff would have realized by performing said contract, had defendant allowed it to do so; that none of said damage has been paid, satisfied, or discharged by defendant, unless it be that defendant can lawfully apply or credit the aforesaid advance of $8,000 thereon, and, if defendant should so claim, then there is remaining unpaid, unsatisfied, and not discharged of plaintiff's said damage the sum of $26,375, and this sum defendant refuses to pay, or to pay any damage whatever at all, although plaintiff has in writing demanded that the defendant compensate plaintiff before bringing this action, and defendant has refused so to do."

Upon this second cause of action, the jury returned a verdict in favor of plaintiff and against defendant for $10,450.

The contract mentioned in the second cause of action for 50 carloads of veneer is not the contract relied upon in the first alleged cause of action which the jury by its special verdict found was not entered into.

Plaintiff assigns error in the entry of judgment on the verdict. The special verdict is not inconsistent with the general verdict for plaintiff on its second cause of action. It was therefore, error for the court to so hold and to render judgment accordingly. The verdict of the jury plainly finds in favor of plaintiff in the sum of $10,450, upon the second cause of action, and in favor of defendant upon its counterclaim in the sum of $8,000, or for a balance in favor of plaintiff of a verdict for $2,450. 27 R. C. L. p. 855, § 27, states, in effect, that ordinarily...