Henry D. Davis Lumber Co. v. Pacific Lumber Agency

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J. TOLMAN, J.
• Citation: Henry D. Davis Lumber Co. v. Pacific Lumber Agency, 220 P. 804, 127 Wash. 198 (Wash. 1923)
• Decision Date: 19 November 1923
• Docket Number: 18116.
• Parties: HENRY D. DAVIS LUMBER CO. v. PACIFIC LUMBER AGENCY.

220 P. 804

127 Wash. 198

HENRY D. DAVIS LUMBER CO. v. PACIFIC LUMBER AGENCY.

No. 18116.

Supreme Court of Washington

November 19, 1923

Department 1.

Appeal from Superior Court, Grays Harbor County; Abel, Judge.

Action by the Henry D. Davis Lumber Company against the Pacific Lumber Agency. Judgment for defendant, and plaintiff appeals. Affirmed.

E. E Boner, of Aberdeen, and J. G. Arnold and Henry Bauer, both of Portland, Or., for appellant.

John C Hogan, of Aberdeen, for respondent.

HOLCOMB J.

A motion by respondent to dismiss the appeal herein upon the ground that no notice of appeal was served upon the sureties on the cost bond given by appellant as plaintiff in the court below is denied, under the authority of our decisions in the Matter of the Improvement of Tenth Avenue Northeast (Wash.) 215 P. 56, and Norbom Engineering Co. v. Cox, 120 Wash. 675, 208 P. 87

.

The action is for damages claimed by appellant because a certain carload of spruce lumber ordered from respondent was not of the grade specified in the order. In January, 1920, appellant bought from respondent a quantity of spruce finish lumber of the grade known to the trade as 'B and better,' for which it paid respondent $2,204.27, and which it had shipped to Rosedale, Kan., where the lumber was resold to one P.J Byrne & Son for $2,888.82. Byrne & Son rejected the shipment and a reinspection was ordered by respondent, which was made on June 8, 1920, and the result of the reinspection reported to appellant on July 15, 1920. The carload of lumber comprised 25,300 feet board measure, and the reinspection at Rosedale, Kan., showed a large percentage of lumber to be off grade on account of defective machine work, that is, defective planing, the surface of the lumber being rough and fuzzy in places so as to disqualify a large percentage of it for spruce finish. Otherwise, as to clearness and quality, outside of the planing and machine work, the lumber was up to grade. The defective machine work, while disqualifying a large percentage of the lumber from qualifying as spruce finish, called for by the order, would not prevent the lumber from qualifying for the next lower grade, known as 'factory finish.' There was practically no difference in the market at that time between 'spruce finish' as called for by the order, and 'factory finish,' the grade next below, and if there was any difference it was not to exceed $2 or $3 per 1,000 feet. All of the lumber could have been made to conform to the contract by a sanding process, which would have cost not to exceed $5 per 1,000 feet. There was practically no change in the market value of 'spruce finish' between January 21, 1920, and the month of August, 1920, except that the market value of that grade of lumber was about $2 per 1,000 feet less in August, 1920, than it was in January and February, 1920, so that the market value remained practically the same for some months after January, 1920.

Appellant knew at all times that respondent had purchased the carload of lumber from the Donovan Lumber Company on the same specifications, and that the Donovan Lumber Company was responsible over to respondent for the car of lumber at that time. After the reinspection at Rosedale, Kan., and on July 15, 1920, respondent wrote appellant as follows:

'Referring to your letter of July 12th relative to Southern car 17885: We attach hereto copy of reinspection report and ask that you endeavor to make an adjustment with P.J. Byrne & Son to the best possible advantage.

'Yours very truly,

'Pacific Lumber Agency.'

Acting under that letter, appellant took the matter up for adjustment with P.J. Byrne & Son as to the deduction, if any, to be allowed them on the carload of lumber, and received from them a reply which, after stating certain deductions, would have made the net balance $661.38 which they were willing to allow and pay, dating from acceptance 60 days net, 2 per cent. 15 days. Instead of submitting the proposition of adjustment that P.J. Byrne & Son had submitted to respondent, on the basis of P.J. Byrne & Son's letter to it, appellant submitted to respondent the following proposition under date of August 12, 1920:

'Pacific Lumber Agency, Aberdeen, Washington--Gentlemen: In compliance with your letter of July 15th, we have been trying to make an adjustment with the P.J. Byrne & Son Company of Rosedale, Kansas, covering shipment in Southern car 17885, but the best we have been able to get from them in a definite proposition is that they will take the stock on the basis of $71.50 reduction from invoice covering the 1X8"', $70.50 covering the 1X10"' and $80.50 covering the 12"', which is flat for the entire quantity of the different widths. We would not, of course, take the responsibility of making any such adjustment without your further authority, and we would ask that you let us hear from you on this, without fail, by very early mail.

'You will appreciate the fact that our money has been tied up in this shipment since early in February, or six months longer than would have been the case had the lumber been up to grade, and as the funds are needed for use in other directions we want to get that back without further delay.

'Yours very truly,

'Henry D. Davis Lumber Co.,

'By M. Lanning, Vice President.'

The above letter was taken by respondents to mean as stated in the letter, and that it means that P.J. Byrne & Son were willing to accept a deduction of $222.50 on the carload lot and it was not taken by respondent to mean, and did not mean, that the deduction specified was so much per 1,000 feet. Respondent, after receiving from appellant the offer of settlement above, of August 12, 1920, took the matter of settlement up with the Donovan Lumber Company, the party liable over to respondent, on the supposition and...