Kirby Lumber Co. v. C. R. Cummings & Co.

• Court: Texas Court of Appeals
• Writing for the Court: Neill
• Citation: Kirby Lumber Co. v. C. R. Cummings & Co., 122 S.W. 273, 57 Tex. Civ. App. 291 (Tex. App. 1909)
• Decision Date: 27 October 1909
• Petition History: writ ref'd
• Parties: KIRBY LUMBER CO. v. C. R. CUMMINGS & CO.

122 S.W. 273

KIRBY LUMBER CO. v. C. R. CUMMINGS & CO.

Court of Civil Appeals of Texas.

October 27, 1909.

Rehearing Denied November 17, 1909.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by C. R. Cummings & Co. against the Kirby Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Moye Wicks and Andrews, Ball & Streetman, for appellant. Hutcheson, Campbell & Hutcheson, for appellees.

NEILL, J.

This suit was brought by appellees to recover damages against appellant for the breach of certain alleged sales of lumber made by the latter to the former; the breach alleged being the company's failure to deliver the lumber contracted for. The defendant answered by general and special exceptions to plaintiff's first amended original petition, on which the case was tried, a general denial, pleas of limitation, and certain other pleas in bar, which will hereafter be referred to. The case was tried before a jury, whom, after the evidence was introduced, the court instructed as follows:

"The undisputed evidence shows that the 360,000 feet of lumber bought by the plaintiff of the defendants on the 23d of July, 1902, was ultimately delivered, and consequently you will not consider that matter at all in making up your verdict.

"(2) The evidence is also undisputed that all the orders beginning near the foot of page 2 of the plaintiffs' first amended original petition filed April 25, 1908, the first order being No. 517, continuing down to and on to page 6, the last being order No. 551, were all given to the defendant Kirby Lumber Company by the plaintiffs, and were by said company accepted for delivery in the quantities and at the prices and at the times stated in the petition.

"(3) The evidence is also undisputed that the Kirby Lumber Company would not have any connection with or sell to any person in Germany or beyond the seas, but that all the orders above cited were sold to and charged to C. R. Cummings & Co., and that they were placed on the books of the Kirby Lumber Company as a charge against the said C. R. Cummings & Co., and it is further undisputed that the said Kirby Lumber Company knew when the orders were given that the lumber was bought to be shipped abroad and sold in foreign markets.

"(4) It is further undisputed that none of the lumber was delivered, and the only duty devolving upon you is to determine what loss Cummings & Co. suffered by reason of such failure on the part of the Kirby Lumber Company to deliver the lumber. In arriving at this, you will take the price at which the lumber was sold for delivery at Rotterdam or at Hamburg, as the case may be, in each instance, and then ascertain what the lumber was worth in that market at the time it was to have been delivered, and allow the plaintiffs as damages the difference between the two prices per thousand feet, and will find what that difference amounted to as to each shipment, and then add to the amount you so find to have been the loss or damages of the plaintiffs on each shipment 5 per cent. on the amount which the whole shipment would have brought at the place of delivery at the time it was contracted to be delivered. You will pursue this method of calculation as to each shipment in regular sequence, and find the aggregate of such loss, if any, as you find there was, and then from that aggregate you will deduct the credit of $2,302.59, admitted to be due by the plaintiffs to the defendant upon some other account, and add to the balance so remaining 6 per cent. interest per annum from June 1, 1903, to this date, and return your verdict for the plaintiffs for the sum resulting from this method of inquiry and calculation. You will then find for the plaintiffs the sum of $925.83 as the amount paid Langbehn & Co., but will allow no interest on that amount, and then, by adding the sum of $925.83 to the aggregate so found as above stated, state the total due at this date, and return your verdict therefor."

In response to the charge the jury returned the following verdict:

"We, the jury, find for the plaintiff, C. R.

Cummings & Co., damages and interest as follows:

Order   517,   damages............ $   830 77
                  "     521,      "   ............     397 70
                  "     524,      "   ............     353 64
                  "     531,      "   ............   5,418 19
                  "     532,      "   ............     524 19
                  "     533,      "   ............     102 90
                  "     535,      "   ............   1,806 06
                  "     546,      "   ............     573 17
                  "     551,      "   ............     303 56

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