Kamm v. Pritchard

• Decision Date: 08 January 1924
• Docket Number: 4092.
• Citation: 296 F. 871
• Parties: KAMM v. PRITCHARD et al.
• Court: U.S. Court of Appeals — Fifth Circuit

296 F. 871

KAMM v. PRITCHARD et al.

No. 4092.

United States Court of Appeals, Fifth Circuit.

January 8, 1924

George C. Paine and Thos. Fite Paine, both of Aberdeen, Miss., and Charlton A. Alexander and F. M. Curlee, both of St. Louis Mo., for plaintiff in error.

R. E Wilbourn, of Meridian, Miss. (Sturdivant, Owen & Garnett, of Columbus, Miss., and Baskin & Wilbourn, of Meridian, Miss on the brief), for defendants in error.

Before WALKER and BRYAN, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

The plaintiff in error, Robert Kamm, brought this action to recover damages for the alleged breach of a written contract between him and the defendants in error, of which, except the signatures, the following is a copy:

'This agreement, made and entered into this 21st day of August, 1916, by and between Robert Kamm, of St. Louis, Missouri, doing business as the Robert Kamm Lumber Company (hereinafter called the company), and H. W. Pritchard and R. F. Pritchard, of Lowndes county, Mississippi, copartners doing business as Pritchard Bros. (hereinafter called Pritchard Bros.), witnesseth that:

'Whereas, Pritchard Bros. have acquired certain timber located on certain lands in Webster county, Mississippi, which timber and lands are more particularly described by section numbers and fractions in a deed of trust, executed by Pritchard Bros. to the company on this date, reference to which is here made for a description of said timber and lands, which timber is hereinafter referred to as the McCullough timber; and

'Whereas, Pritchard Bros. are now the owners of certain other timber and timber rights; and

'Whereas, the parties hereto desire that the company shall handle the entire output of all saw and planing mills of Pritchard Bros.:

'Now, therefore, in consideration of the premises, and of the conditions and stipulations hereinafter contained, the parties hereto have agreed as follows:

'First. Pritchard Bros. agree to ship to the company all of the lumber manufactured or produced by or for them (except such lumber as they may sell to local consumers) during the continuance of this contract, shipping either on orders furnished by the company, or, in the absence of such orders, placing the lumber in transit, and the company agrees to handle all such lumber as hereinafter provided.

'Second. Pritchard Bros. agree to operate their mills to capacity, except when prevented by inclement weather, breakdowns, or other conditions beyond their control, manufacturing all stock in a skillful and workmanlike manner, placing the same on sticks for drying.

'Third. Pritchard Bros. agree to deliver all of said lumber on board cars at the railroad as rapidly as possible, and continue so to do so long as this contract may remain in force, as orders are placed by the company, or as transit shipment may be directed by the company.

'Fourth. Pritchard Bros. agree to forward to the company, at least once a month, a stock list, showing all material on hand, and the quantity thereof, in shipping condition.

'Fifth. It is agreed that the rules of the Southern Pine Association shall govern all matters of grades, patterns, etc., except on special orders, and the estimated weights of said association shall be used in estimating freights on shipments at the time of advance. All questions of grades and quantity shall be settled on the basis of the condition of all shipments on arrival at final destination. The company shall use reasonable diligence to get proper settlements and adjustments of all disputes, and shall settle with Pritchard Bros. on the basis of the grades and quantities on which the company settled with its vendees.

'Sixth. Pritchard Bros. agree to pay the company ten (10) per cent. of the net selling price of all the lumber handled under this contract, in full compensation for all services rendered hereunder, and to allow also the customary trade discount of two (2) per cent., the net selling price to be the gross price secured by the company, less freight, shortages, and grade allowances.

'Seventh. The company agrees to advance to Pritchard Bros. eighty (80) per cent. of the selling price of all shipments on orders and eighty (80) per cent. of the estimated selling price of all transit shipments, after deducting the estimated freight and commission, upon receipt of invoices and bills of lading, and to remit the remainder of the net price of each shipment, less claims as to shortages, grades, freight, and commission adjustments to Pritchard Bros., on receipt of expense bill and settlement with the customer. So long as Pritchard Bros. are indebted to the company, the company, in addition to the foregoing deductions, shall also deduct from remittances to Pritchard Bros. the sum of twenty-five...