Ingram-Day Lumber Co. v. Schultz

• Decision Date: 03 December 1930
• Docket Number: No. 4310.,4310.
• Citation: Ingram-Day Lumber Co. v. Schultz, 45 F.2d 359 (7th Cir. 1930)
• Parties: INGRAM-DAY LUMBER CO. v. SCHULTZ.
• Court: U.S. Court of Appeals — Seventh Circuit

45 F.2d 359 (1930)

INGRAM-DAY LUMBER CO. v.SCHULTZ.

No. 4310.

Circuit Court of Appeals, Seventh Circuit.

December 3, 1930.

William H. Armbrecht, of Mobile, Ala., and Thomas M. Priestley and Vroman Mason, both of Madison, Wis., for appellant.

M. F. Gallagher, S. M. Rinaker, and E. B. Wilkinson, all of Chicago, Ill., for appellee.

Before ALSCHULER, SPARKS, and ANDERSON, Circuit Judges.

SPARKS, Circuit Judge.

Appellee sued appellant for breach of contract for failure to deliver piling in pursuance of a contract which was entered into by appellant and appellee's decedent, hereinafter referred to as Schultz.Appellant counterclaimed, demanding the purchase price of such piling as was delivered.

A jury was waived in writing.The court made special findings of the facts, and they are quite voluminous by reason of the fact that the letter and telegrams which constitute the contract are fully set forth.With the exception of minor details, which are not material to the determination of the questions presented, the terms of the contract are contained in a telegram, dated January 28, 1925, from Schultz to appellant, which is as follows:

"As per your request of the twenty-sixth you may cancel our order of January twenty-second and substitute our order of this date for six thousand six hundred and thirty-five southern pine piles, peeled or unpeeled at your option, from turpentined, or round, or mixed timber at your option.Lengths as per our letter of January twenty-second, and the schedule attached.Specifications as per specification sheet attached.Shipments to begin in one week, or sooner if possible, and to be completed by April twenty-first next.Price twenty-five cents per lineal foot, freight allowed to Detroit.Terms — payment eighty per cent of value at loading point on receipt of invoice and bill of lading; balance as soon as proper freight deduction is ascertained.All in net cash, and to be legally guaranteed by Continental Credit Trust.You to furnish requested bond for performance of contract.All piles to be consigned as per our letter of January twenty-second Inspection at loading points at our expense."

Appellant declined to agree to give bond, and none was given.L. D. Leach & Co., of Chicago, was substituted for Continental Credit Trust; and in the last sentence the word "fair" was inserted before the word "inspection."

The letter of January 22 from Schultz to appellant, to which reference is made in the above telegram of January 28, was introduced in evidence as Jx9.It contained the lengths of the piling ordered, but these were subject to variations which might be caused by including intermediate lengths, and which necessitated Schultz to notify appellant in ample time for shipment.The letter also contained complete specifications, concerning which there is no controversy as to interpretation, except as to the following sentence: "The diameter 2' from the butt of all piles to be not less than 12"."

The only other controversy as to the interpretation of the contract relates to the sentence in the telegram which reads as follows: "Shipments to begin in one week, or sooner if possible, and to be completed by April twenty-first next."

Upon the facts found, the court concluded:

"1.That under the terms of the contract between plaintiff's intestate and the defendant, the defendant was required to commence shipping piling within one week from January 30, 1925, and was required to make a series of shipments, reasonable in amount and at reasonable times, in the light of defendant's capacity for production and shipment, the needs of plaintiff's intestate, and the necessity for avoiding congestion of shipments beyond its ability to procure cars and the prompt dispatch of said cars to destination, as well as in the light of the total number of piling to be shipped.

"2.That in failing to ship a substantial number of piling in excess of 2,214 by March 25, 1925, and in excess of 2,367 by March 30 and April 7, 1925, the defendant materially defaulted in the performance of its contract.

"3.That under the terms of said contract plaintiff's intestate was required to pay therefor car by car.

"4.That the specifications under the said contract were and are not ambiguous.

"5.That under the terms of said contract defendant was required to ship piling, the minimum diameter of which measured not less than 12" when measured at a point 2' from the butt.

"6.That said contract required that plaintiff's intestate furnish to defendant schedules of lengths at reasonable times, in the light of defendant's needs and the status of its production shipment under the contract.

"7.That defendant was entitled to an extension of time, from April 21, April 28, within which to complete shipments, in view of the uncertainty existing from March 26 to April 4, of the dimensions of the products which would be ultimately taken by plaintiff's intestate.

"8.That the measure of plaintiff's damage is the difference between the contract price and the market value of piling like that specified in the contract at the time when, and place where, they should have been delivered.

"9.That plaintiff's intestate performed all things required of him to be performed under the said contract.

"10.That on April 7, 1925, plaintiff's intestate, under the circumstances of this case, had a right to offer to and, in fact, to apply the amount owing by him to the defendant for piling shipped in reduction of the damages sustained by plaintiff's intestate.

"11.That the defendant breached said contract by failing to ship 4,268 piles, having 318,700 lineal feet as required by the contract.

"12.That by reason of defendant's defaults under said contract, plaintiff's intestate suffered damage in the sum of $15,935.

"13.That defendant is entitled to have offset against the damages sustained by plaintiff's intestate, the sum of $6,590.25, which amount it was stipulated by the parties was the amount actually withheld by plaintiff's intestate and applied in reduction of his damages.

"14.That plaintiff is entitled to judgment herein against the defendant in the sum of $9,345.25, with her costs to be taxed.

"15.That defendant's counterclaims should be dismissed."

There were thirteen points raised and discussed by appellant, and all but six present questions of fact concerning which there was conflicting evidence, and these were determined adversely to appellant.Another point relates to the diameter of the piles.In this respect appellant contends that a diameter of 12 inches at a point 2 feet from the butt means average diameter.Ordinarily the interpretation of language raises a legal question, but appellant offered evidence of custom to vary the ordinary meaning of apparently plain language.This was met by contradictory testimony on the part of appellee, and it thus became a question of fact, which was determined adversely to appellant.

Where a case is tried by the court, a jury having been waived, its findings upon questions of fact are conclusive in the courts of review.Errors alleged in the findings of the court are not subject to revision by this court if there is any evidence upon which such findings can be made.Dooley v. Pease, 180 U. S. 126, 21 S. Ct. 329, 45 L. Ed. 457;Hathaway v. First National Bank, 134 U. S. 494, 10 S. Ct. 608, 33 L. Ed. 1004;Stanley v. Supervisors, 121 U. S. 535, 7 S. Ct. 1234, 30 L. Ed. 1000.

The other points raised involve questions of law.Appellant contends that the court erred in its conclusions of law, in that it did not construe the contract in such manner as to permit appellant, after having shipped a part of the piling within a week from January 30, 1925, to ship the remaining piles at any time on or before April 21, 1925.In other words, it insists that it was optional with appellant as to when the remaining piles should be shipped, provided they were all shipped not later than April 21, 1925.In support of this contention, it relies upon the following propositions of law:

(1) Where a contract provides for delivery within a certain time, or before a certain date, the party by whom the first act in performance of the contract must be done has the choice of the date or dates of performance, provided such date is within the period permitted by the contract; and, in making such choice as to date of performance, such party may consult his own convenience.Dingley v. Oler, 117 U. S. 490, 6 S. Ct. 850, 29 L. Ed. 984;Vogt Bros. Mfg. Co. v. Sloss-Sheffield Steel & Iron Co. (C. C. A.)297 F. 54;Hunt v. Stimson (C. C. A.)23 F.(2d) 447;In re Malko Milling & Lighting Co. (D. C.)32 F.(2d) 825;Harman v. Washington Fuel Co., 228 Ill. 298, 81 N. E. 1017.

(2) Previous and contemporary transactions and facts may be very properly taken into consideration to ascertain the subject-matter of a contract and the sense in which the parties may have used particular terms, but not to alter or modify the plain language which they have used.Consolidated Coal & Lime Co. v. Mercer, 16 Ind. App. 504, 44 N. E. 1005;Shipman v. Saltsburg Coal Co. (C. C. A.)62 F. 145;North American Oil Co. v. Globe Pipe Line Co. (C. C. A.)6 F.(2d) 564;Bahnsen & Co. v. Leaf, 203 App. Div. 618, 197 N. Y. S. 160.

These principles are sound, and they are based upon the assumption that the language of the contracts to which they are to be applied is certain and unambiguous.If, however, the language used is uncertain and ambiguous, then, according to the principle stated, previous and contemporary transactions and facts may be very properly taken into consideration to ascertain the intention of the parties in respect thereto.

The portion of the contract which gives rise to this discussion relates entirely to the delivery of the piling, and is as follows: "Shipments to...