Harris Lumber Company v. Wheeler Lumber Company

• Decision Date: 30 November 1908
• Citation: 115 S.W. 168,88 Ark. 491
• Parties: HARRIS LUMBER COMPANY v. WHEELER LUMBER COMPANY
• Court: Arkansas Supreme Court

115 S.W. 168

88 Ark. 491

HARRIS LUMBER COMPANY v. WHEELER LUMBER COMPANY

Supreme Court of Arkansas

November 30, 1908

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

STATEMENT BY THE COURT.

This suit was begun by appellant against appellee in a justice's court for a balance alleged to be due on lumber which appellant had sold appellee. The amount claimed was $ 100. Appellee denied orally that it was indebted to appellant in any sum, but claimed that appellant was indebted to it on account of a breach of the contract made between appellant and appellee in regard to sale of lumber, in the sum of $ 175.

In a written reply to this oral claim appellant denies that appellee has been damaged in any sum on account of appellant's failure to comply with its contract, denies that appellant failed to comply with its contract, and avers that "whatever delay, if any, in shipping said lumber was caused by the carelessness of the roads, the amount and kind of lumber ordered by appellee, and other conditions over which appellant had no control, and the fact that appellee refused to pay for the lumber when due."

It appears from the evidence that the contract originated in this way: Appellee sent to appellant for a list of lumber for prices. Appellant in reply letter sent a list of lumber giving kind, dimensions and price, and saying: "We hope that you will be able to favor us with a portion of your business. We can ship you dry stock and ship you promptly." In reply to this letter appellee wrote appellant under date of September 25, 1905, as follows:

"Enclosed find list of eleven cars. Each car numbered and prices attached as per your quotation of 22d inst. Cars No. 1 and 2 we would like you to ship promptly, and the balance one or two cars a week, or along as convenient. We would like to have the whole shipment within ninety days." To this letter was attached the order for the eleven cars. Each car numbered and the number and dimensions of the lumber for each car.

Appellant on same day wrote accepting the order as follows: "We note your letter of the 9--25; also orders. We will accept your orders with the understanding that we are to ship any and all as fast as we accumulate it on the yard. You will note that this is all No. 2, and that it is mostly all eighteen and twenty foot lengths, which makes it bad on us. If all right, we can load you up several cars soon, and we will check each of them off as we load it, and will not load any more than your order calls for. Please answer."

The appellee on the 26th of September, 1905, replied as follows "You may let the stuff come. But check items as loaded and do not ship more than the order calls for of any one item. Trusting that this will be satisfactory, we are etc."

On the next day appellant answered as follows: "We note your letter of the 9--26. Will go to work on your order at once."

The above constituted the contract between the parties as to the sale of the lumber. It is not shown by the correspondence when the lumber was to be paid for, but the uncontradicted evidence was that the bill for a car load of lumber would be due sixty days after the car was shipped, that those were the regular terms for lumber sold on time, and that the lumber was sold to appellee on the regular terms. Appellant began the shipment of lumber on October 10, 1905, and continued to ship until February 6, 1906, when the last car was shipped. It shipped eight cars. Appellant testified and appellee admitted that the sum of $ 100 was due on the lumber that had been shipped under the contract, but appellee contended that it was the duty of appellant to have shipped eleven cars under the contract, and that the lumber which it failed to ship was worth $ 175 more at the time it refused to ship same than the contract price at which appellee purchased same of appellant. There was no shipment of lumber from December 9 1905, till February 6, 1906. In the mean time the correspondence shows that appellee was complaining of the delay and urging appellant to make more prompt shipments, and appellant in reply (February 12, 1906) made excuses for the delay and promised to send the balance of the order "as soon as possible." On March 3, 1906, appellant advised appellee by letter that the former had drawn on the latter for $ 722.59 the amount of its account past due. Appellee in answer sent a remittance for $ 250. Appellant in a letter of March 7th acknowledged receipt of remittance and said: "Hope you will not delay sending balance due." On March 21, 1906, appellee wrote appellant as follows: "We are still waiting patiently for balance of our order. If you only knew how badly we need stuff, you would appreciate our hurry. We will let you have another check in a few days." In answer to this appellant wrote: "We note your letter of 3--20" (evidently meaning 3--21.) "If this kind of weather continues, we will soon be able to get some lumber hauled in from the woods, but before we ship you any more we must know about this pay, as part of your account is past due, and we need this money to run our business, and we can sell our lumber to men who will pay promptly."

On April 4th appellee wrote appellant as follows: "Enclosed find check for $ 313.13, the amount of our account less $ 100, Expense bill for $ 50.13 also enclosed. We notice by your last letter that you can sell your lumber to people who pay promptly. We feel that we have been as prompt in our remittances as you have in your deliveries. You accepted our order September 25--05, which is more than six months ago. It will be just as convenient for us for you to ship with draft, invoice and bill of lading attached, as regular terms, provided that on the last car or our order you include the draft for the $ 100 which we are holding up. We would appreciate an early delivery of this order as by agreement, and, in order to satisfy you, to be paid for as before stated, i. e., cash on delivery. If you had delivered this stuff promptly, we have been in position constantly to comply with our letter of March 2, 1906."

Appellant's witness testified that appellee was constantly behind with its payments, and that the reason the two cars were not shipped was because he "felt like they would not pay us for it." On the other hand, appellee's witness testified that "he kept the bills paid promptly until he (appellant) quit shipping," that the money was held in order to force shipment. There was evidence on behalf of appellee tending to show that appellant failed to ship 42,342 feet of lumber contracted for, and that the difference between the contract price and market price when it should have been delivered was approximately five dollars per thousand. On the other hand, the evidence of appellant tended to show that the advance in the price of lumber, such as composed the order here, amounted to only fifty cents per thousand, and that it would not exceed the sum of $ 8.00 per car. The court among others gave the following instructions:

"1. If the jury believe that the plaintiff agreed to furnish to the defendant one entire lot of lumber, and has failed or refused to furnish a part of same, it is not entitled to recover in this action.

"2. If the plaintiff has failed to ship to defendant all the lumber it contracted to ship to it, defendant would be entitled to recover from plaintiff the difference between contract price of the lumber and the market value of same at the time it should have been shipped, if that be greater than the contract price."

The court refused to give, among others, the following prayers:

"1. If you find from the evidence that the Wheeler Lumber Company is indebted to the plaintiff, Harris Lumber Company, for lumber, then your verdict must be for the plaintiff for such sum as you believe from the evidence is still due on said lumber.

"2. If you believe from the evidence that the defendant, Wheeler Lumber Company, failed or refused to pay for said lumber, or any part thereof, when same fell due, then the plaintiff was not required to continue to furnish lumber to defendant while any part of the account was due and unpaid.

"A. If you believe from the evidence that plaintiff delivered to this defendant the lumber as fast as it accumulated on its yards, then your verdict must be for the plaintiff."

To these rulings exceptions were properly saved. The verdict and judgment were for appellee in the sum of $ 25, and this appeal is duly prosecuted.

Judgment reversed.

Brizzolara & Fitzhugh, for appellant.

It is clearly shown by the evidence that the lumber was to be shipped and paid for in installments as delivered. The contract was therefore severable, and there could be a breach for nonpayment before complete delivery. 137 N.Y. 471; 148 N.Y. 81; 104 Mich. 242; 110 Pa.St. 236; 7 Words & Phrases, 6454. Where the contract calls for delivery of goods in installments, and payment therefor as delivered, the seller may refuse to deliver subsequent installments until prior installments have been paid for, and, if payment is refused, he may rescind the contract. 24 Am. & Eng. Enc. of Law (2 Ed.), 1096; 117 Mass. 6; 44 Ill. 339; 115 U.S. 188; 113 F. 256; Tiedeman on Sales, 210; 98 S.W. 34; 43 Am. Dec. (Century Ed.), c. 423; 81 N.E. 574; 149 Ill. 138; Bishop on Contracts, 613.

Appellees were not authorized to withhold the hundred dollars due on prior installments of lumber received and accepted. 110 Pa.St. 242; 51 A. 305; 78 N.E. 414.

Winchester & Martin, for appellee.

The contract was admitted as pleaded, and the proof is conclusive that appellant did not comply with it. The only contested issue, therefore, was whether or not appellee was damaged by reason of appellant's breach of contract. Testimony that is not responsive to...