Jerome Hardwood Lumber Company v. Davis Brothers Lumber Co., Ltd

• Decision Date: 26 November 1923
• Docket Number: 5
• Citation: 255 S.W. 906,161 Ark. 197
• Parties: JEROME HARDWOOD LUMBER COMPANY v. DAVIS BROTHERS LUMBER CO., LTD
• Court: Arkansas Supreme Court

255 S.W. 906

161 Ark. 197

JEROME HARDWOOD LUMBER COMPANY v. DAVIS BROTHERS LUMBER CO., LTD

No. 5

Supreme Court of Arkansas

November 26, 1923

Appeal from Drew Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

J G. Williamson, Lamar Williamson and Adrian Williamson, for appellant.

The contract was not accepted according to its terms, and never became binding. The acceptance of an offer must be in accordance with the terms of the offer. 23 R. C. L. 1284; 35 Cyc. 53; 112 Ark. 380; 97 Ark. 613; 90 Ark. 131; 107 Ark 224; 25 Ark. 545. There was no evidence that the contract was signed by any person authorized to bind appellant. The authority of an agent cannot be proved by his own declarations. 114 Ark. 301; 92 Ark. 315. The purported contract of purchase is entirely too vague and uncertain as to quantity and proportional classification of the material ordered, to form a basis for the calculation of damages. See 9 C. J. p. 1293; 14 S.W. 1069, 1079; 88 Ark. 492; 23 Ark. 63; 96 Ark. 188; 117 Mo.App. 19; 13 C. J. 266-268, § 59; 6 R. C. L. 643-644, § 59; 6 R. C. L. p. 647, § 61. It was error to direct a verdict. But in no event should interest have been awarded on unliquadated damages before judgment. 8 R. C. L., p. 533, § 86; 72 Cal. 498, 1 Am St. Rep. 75; 17 C. J., p. 815, § 137; 21 Ark. 350; 52 Ark. 473; 11 A. L. R. 576; 3 A. L. R. 805, and note at p. 809. Acceptance of an offer or order must be made within a reasonable time, and the jury should have been allowed to say whether the offer was so accepted. 96 Ark. 27; 105 Ark. 575; 113 Ark. 221. By failing to ship within a reasonable time, the appellee itself was in default. 88 Ark. 491.

Henry & Harris, for appellee.

Appellant is estopped to deny the validity of the contract, as it recognized same as binding, both by numerous letters and telegrams, and even went so far as to ask a cancellation of the contract. 33 Ark. 465; 147 Ark. 555. On the question of uncertainty as to quantity sold, raised by appellant, the case cited by appellant in 96 Ark. 184 is against him. The other cases cited on the point are not applicable. A carload is "a load that fills a car." 9 C. J. 1293. A directed verdict was proper, as the question of the sufficiency of the evidence was one of law for the court, the facts being undisputed. 97 Ark. 442. Upon a breach of contract the rule is that the measure of damages is the difference between the price fixed by the contract, and the market value at time of delivery or offer to deliver. 92 Ark. 116; Ann. Cas. 1913-C., 765, and notes. Interest was properly allowed, as compensation for the wrongful detention of the money. 50 Ark. 169; 69 Conn. 228; 88 Ark. 557; 26 C. C. A. 23; 192 Mass. 391; 93 N.Y.S. 319; 68 S.W. 53; 116 S.W. 783.

OPINION

WOOD, J.

This is an action by the appellee against the appellant to recover damages for an alleged breach of contract. The appellee alleged, in substance, that the appellant, on the 17th of May, 1920, sent to the appellee an order for certain lumber; that appellee accepted the order, and was at all times ready, willing and able to perform the contract on its part, but that appellant breached the contract on the 30th of March, 1921, by canceling the order, to appellee's damage in the sum of $ 1,642.50, for which the appellee prayed judgment.

The appellant answered denying specifically the allegations of the complaint.

F. M. Sparks testified, as a witness for the appellee, to the effect that he was the sales manager of the appellee. He identified the order for the purchase of the lumber, which order was attached as an exhibit to appellee's complaint, and introduced the same in evidence. That order is as follows:

"Lumber Purchase Order

"Jerome Hardwood Lumber Company.

"Put this number on your inv.

"Jerome, Arkansas, May 17, 1920.

"Order No. F267.

"To Davis Bros. Lumber Co.,

"Ansley, Louisiana.

"Ship from Jerome Hardwood Lumber Co.

"Ship to Jerome Hardwood Lumber Co.,

"Jerome, Arkansas.

"Route via Mo. P. at El Dorado, Ark.

"Terms cash less 2 per cent.

"All agreements contingent upon strikes, fires and other delays unavoidable and beyond our control.

"Please enter our order for the following material for shipment in accordance with above instructions:

"2 carloads 4-4" No. 2 and 3 common plain oak, as follows:

"4-4" No. 2 common

$ 80.00

"4-4" No. 3 common

$ 30.00

"The stock to be nicely manufactured, of good average widths and lengths, good dry stock, and otherwise in accordance with verbal order given you by our Mr. Smith, and the National rules. Show ourselves as shippers and consignees, inserting in each B-L:

"For manufacture and reshipment.

"F. O. B. cars Ansley, La.

"Lengths standard--Good average.

"Widths standard--Good average.

"Inspection--Mutual- -According to the National Hardwood Lumber Association rules of inspection, in case of dispute the stock to be loaded by a National inspector, the expense of said to be divided equally.

"Acknowledge receipt of this order, promptly, stating when shipment will be made. Mail invoice in duplicate for each shipment, together with original and duplicate bill of lading on date of shipment.

"JEROME HARDWOOD LUMBER COMPANY.

"By J. M. Wells.

"Accepted: Davis Bros. Lumber Co., Ltd.

"By F. M. Sparks."

The witness, over the objection of appellant, identified a letter addressed to the appellee, dated May 18, 1920, in which the above order in duplicate was inclosed. Witness wrote the word "Accepted" on the order and returned it to the appellant. This letter of May 18, 1920, was written on the letterhead of the appellant, and showed the names of the president, the vice-president, the secretary and treasurer, and the name of J. F. Moeller as sales manager of the appellant, and set forth the business in which appellant was engaged. The letter set out the terms and conditions upon which the order was made, and concluded as follows: "Our Mr. Smith advises that he called on you last week and placed order with you for two carloads of 4-4" No. 2 and 3 common plain oak on basis of $ 80 and $ 30 f. o. b. cars Ansley, and we are herewith inclosing our formal order F-267 covering these two cars of oak. Please accept duplicate order, returning for our files, and please also advise when you will be ready to ship this stock, and we will arrange to have one of our inspectors accept same.

"Yours very truly,

"JEROME HARDWOOD LUMBER CO.

"J. M. W.-B. (Signed) J. M. Wells."

Seven other letters were introduced, written on what purported to be the letterheads of the appellant as above set forth, addressed to the appellee. All of these letters were signed with the appellant's name by J. M. Wells, "manager of lumber sales," except one, which had the appellant's name signed thereto by M. A. Bates. Appellee also introduced two telegrams dated at Jerome, Arkansas, and signed by the Jerome Hardwood Lumber Company. One of these telegrams, dated July 28, 1920, was as follows: "Sorry unable to send inspector see letter." The other was dated March 22, 1921, and stated as follows: "Answer yours 15th delayed again manager absent writing fully today."

It would unduly extend this opinion to set out this correspondence in haec verba, and we will therefore only state the substance as we deem it material. It pertains to the alleged contract between the appellant and the appellee for the sale and purchase of the lumber.

The witness further identified and introduced the letters of the appellee to the appellant. The first one of these letters was dated June 23, 1920, in which the appellee, in substance, stated that it had the lumber ready for shipment which had been ordered by the appellant on May 17, 1920, but was then unable to ship the same on account of scarcity of cars, and suggesting that the appellant allow the appellee to inspect the lumber for the appellant and ship the same on the guaranteed inspection, and concluded this letter by requesting the appellant to advise the appellee immediately whether appellant would be willing to allow appellee to ship more than three cars on appellant's order.

The purported letter of the appellant, in answer to the above letter, dated June 26, 1920, stated that appellant preferred to have all the lumber purchased under its form of order inspected by its own inspector, but was unable to state definitely when it could send its inspector, and stating that, if satisfactory to the appellee, appellant preferred to cancel the order, requesting appellee to advise appellant if it would be satisfactory to cancel the order. Appellee answered this letter on June 26th, notifying the appellant that it was not satisfactory to cancel the order, and saying: "As we reserved the stock for you and have been holding it for some time."

In answer to this letter the appellant wrote on July 2, 1920, in substance reiterating that it preferred to have the lumber inspected by its own inspector, and that it would arrange as soon as it could to have one of its inspectors go to appellee's plant and load the stock out. As late as July 28, 1920, the appellant wrote the appellee, acknowledging receipt of a telegram from the appellee, and stating that it was sorry that it was unable "to send an inspector to take up the two cars of oak," and that it was not in a position to take the stock at that time, but just as soon as it could arrange to do so it would advise the appellee.

The appellant, after this letter, did not advise the appellee to ship the lumber. Appellee, at all times, had the lumber on the yards ready for shipment, but did not, from the time of receiving the last letter until February 16, 1921, have any correspondence or conversation with the appellant in regard to the lumber. On the latter date the...