Kelly v. McBarron

• Decision Date: 10 March 1971
• Citation: 482 P.2d 187,258 Or. 149
• Parties: Dick KELLY, dba Kelly Lumber Sales Company, Appellant, v. Dana McBARRON, dba Dana McBarron Wholesaler Lumber Specialties and Dana-Deck, Inc., an Oregon corporation, Respondents.
• Court: Oregon Supreme Court

Page 187

482 P.2d 187

258 Or. 149

Dick KELLY, dba Kelly Lumber Sales Company, Appellant, v. Dana McBARRON, dba Dana McBarron Wholesaler Lumber Specialties and Dana-Deck, Inc., an Oregon corporation, Respondents.

Supreme Court of Oregon.

Argued and Submitted Jan. 7, 1971.

Decided March 10, 1971.

Vincent G. Robeson, Lake Oswego, argued the cause and filed a brief for appellant.

Raymond J. Salisbury, Grants Pass, argued the cause for respondents. With him on the brief were Schultz & Salisbury, Grants Pass.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, HOWELL, and BRYSON, JJ.

HOLMAN, Justice.

Plaintiff filed an action for damages alleging that defendants had wrongfully and maliciously filed a mechanic's lien. The case was tried by the court without a jury. The trial judge found for the defendants and plaintiff appealed.

Plaintiff and the defendant McBarron were limber brokers. The corporate defendant was the creature of the defendant McBarron, who hereinafter will be referred to as if he were the sole defendant. Plaintiff, a resident of Texas, placed an order with defendant in Oregon for some laminated wooden arches for a contractor who was a customer of plaintiff. The terms were 'f.o.b. Odessa, Texas.' The order was placed by the defendant with a mill in Oregon.

The time specified for shipment passed without shipment having been made, because the order constituted less than a carload lot, and it would not have been economical for defendant to make such a shipment without including a filler. A 'filler' is accompanying merchandise sufficient to make up a minimum-rate carload lot of 34,000 pounds and which has the same approximate destination as the primary order. The order and its acceptance said nothing about a filler. However, during the pendency of the order, there were telephone calls and correspondence between the parties relative to a filler.

Finally, plaintiff, after having been contacted by the mill, purchased the merchandise manufactured pursuant to defendant's order directly from the mill and requested that it be shipped to him, even though it did not qualify for carload rates. The lien in question was subsequently filed in Texas by defendant for the contract price which plaintiff had agreed to pay to defendant for the material.

There is a dispute in the testimony as to whether it is the unspoken rule, if nothing is said to the contrary, that all offers between wholesalers to sell merchandise f.o.b. destination are based on freight at the carload rate and, therefore, that the merchandise will not be shipped until a filler has been arranged.

Plaintiff testified that before he dealt directly with the mill he called defendant's place of business and talked to an employee of defendant and that the order was mutually cancelled. Defendant testified he knew nothing of such a cancellation and thought that the shipment had gone forward pursuant to his order. Defendant's employee with whom plaintiff claimed to have talked was not called as a witness by either party.

After the order arrived in Texas, defendant wrote to plaintiff, as follows:

'Also relieved the laminates arrived on the LCL car shipped August 20 by Timber Laminators per your instructions to them to get it away regardless of freight costs. We haven't received their billing yet and will attempt some sort of a compromise between them, you, and us on the extra freight cost. We, like you, were in here most competitively with a 95.00 ft. cost, and, as Timber Laminators advised us, they already cut the price to you prior to shipment to help out. So how much relief they will go along with, I do not know. Possibly a letter from you to them might help.'

Plaintiff did not respond to this communication. Three and one-half months later, not having received payment for the order, defendant filed a lien for the full contract price.

When plaintiff found out from his customer that defendant had filed a lien, he contacted defendant for the purpose of getting the lien released. Defendant testified that this was the first time he had any knowledge that plaintiff had dealt directly with the mill and had paid for the merchandise. To secure the removal of the lien, plaintiff paid defendant the portion of the lien which would have equaled defendant's profit plus an additional amount covered by another lien which defendant had filed pursuant to another order from plaintiff. The amount collected on the other lien...