L. Bucki & Son Lumber Co. v. Atlantic Lumber Co.

• Decision Date: 28 May 1901
• Citation: 109 F. 411
• Parties: L. BUCKI & SON LUMBER CO. v. ATLANTIC LUMBER CO.
• Court: U.S. Court of Appeals — Fifth Circuit

109 F. 411

L. BUCKI & SON LUMBER CO. v. ATLANTIC LUMBER CO.

United States Court of Appeals, Fifth Circuit.

May 28, 1901

The case may be shortly stated as follows: On the 28th of June 1892, the Ambler Lumber Company, party of the first part, and Charles Lord Bucki, party of the second part, entered into a contract, in which the stipulations material to the present case are as follows: 'The said parties, each in consideration of the things herein agreed to be done and observed by the other, agree as follows: (1) The party of the first part to deliver to said party of the second part, and he to receive from it, at his log pens in Jacksonville Florida, for the period of eight years, counting from the starting up of the mill hereinafter mentioned, good merchantable pine logs to the amount of one million five hundred thousand feet, board measure, according to Preston's rules of measurement, each month: provided that at any time within four months from the starting up of the mill, the quantity to be delivered per month may be increased, at the option of the party of the second part, on thirty days' notice, so as, however, not to exceed two million feet in any one month, and the amount so fixed shall be monthly delivered during the term of this contract: and provided, further, that all logs that may have been delivered and accepted previous to the starting up of the mill shall be treated as a proper delivery under this contract. Said logs shall average, according to Preston's scale, three and one-half logs to the one thousand feet, which party of the first part guaranties, and no deduction shall be made for sap; and the party of the first part guaranties that the sap on logs delivered during the term of this contract shall not exceed an average of four inches of the diameter of the log at the small end; and if, at the end of six months, such sap shall have exceeded an average of four inches of such diameter, there shall be refunded the value of such average excess, anything herein to the contrary notwithstanding. At the determination of the contract all the averages of sap to be adjusted to cover the entire period and, if the average of the logs delivered during the entire period shall be within the limit of the four inches of sap, then any amount allowed for such excess shall be paid to said party of the first part. All logs to be of good average lengths, say from seventeen to forty feet. All logs are to be scaled at the small end inside the bark, according to Preston's rules: provided, that all logs which shall be over forty feet in length, by special order of the party of the second part, shall be scaled by middle measurement under Preston's rules: and provided, further, that the party of the first part may, if it desires, deliver logs over forty feet in length without specific orders, but in such case the logs shall be measured at the small end. (2) When the logs shall be ready for delivery at the log pens of the party of the second part, the parties shall jointly select a surveyor, whose wages shall be paid one-half by each party, who shall survey and scale according to Preston's rules, as the same shall be delivered at the said log pens, and report thereon in writing to each of the parties, and whose report shall be conclusive as to quality and quantity: provided, that, if either party shall, in writing, object to the surveyor so jointly selected at any time thereafter, or in case of his death or inability to serve, a successor or substitute shall be at once mutually chosen. (3) The said party of the second part shall have the privilege of ordering from said party of the first part, at pleasure, logs of specific length of thirty feet and less, which said parties agree to furnish: provided, that whenever, in the filing of such specific orders, logs shall be supplied that scale less than at the rate of one thousand feet to every three and a half logs, such logs shall not be so counted as to affect the said average of three and one-half logs to the thousand feet. (4) Until delivery by said party of the first part at said log pens, the expenses and risk shall be exclusively that of said party of the first part, but the party of the second part agrees to furnish at his expense two men to assist in unloading the trains during the usual working hours at the mill without intermission for any reason, and to provide a log pen of sufficient capacity to hold two million feet of logs, board measure. (5) During the five years next succeeding this contract the party of the second part is to pay to said party of the first part at the rate of seven 25/100 dollars per thousand feet of logs, board measure, for the logs delivered to him, measurement to be made as hereinbefore provided, and thereafter and during the remainder of the term of this contract,-- that is to say, during the three years next ensuing,-- at the rate of seven 75/100 dollars per thousand. Payments shall be made by said party of the second part; and he hereby agrees to pay on the first and fifteenth of each month for previous deliveries,-- that is to say, on the fifteenth of the month for the deliveries between that date and the last day of the proceeding (preceding) month, and the first of the month for those between that date and the fourteenth of the proceeding month,-- in drafts payable in bank in the city of New York sixty days after the date thereof; but after one year from this date party of the first part may demand cash, allowing a discount at the rate of eight per cent. per annum, and the party of the second part shall, on such demand, pay the cash. ' This contract appears to have been immediately transferred by the party of the first part to the Atlantic Lumber Company, and by the party of the second part to L. Bucki & Son Lumber Company. Operations were carried on under the contract until the 1st of October, 1897, when the Atlantic Lumber Company instituted two suits against the L. Bucki Lumber Company, in one of which a general breach in the contract on the part of the L. Bucki & Son Lumber Company was averred, and general damages claimed. The other suit was to recover amount due for the contract price of logs delivered by the Atlantic Lumber Company to the L. Bucki & Son Lumber Company prior to October 1, 1897. The two suits were consolidated, an amended declaration filed, and judgment was asked for general and specific damages. The L. Bucki & Son Lumber Company answered, denied breach of the contract, averred breaches on the part of the Atlantic Lumber Company, particularly in that the said lumber company did not either in the months of June, July, August, or September, 1897, deliver to the L. Bucki & Son Lumber Company logs averaging 3 1/2 logs to the 1,000 feet, as had been covenanted in the contract. In the trial of the suit the material question was the interpretation of the contract with regard to the average of logs to be delivered thereunder. The plaintiff claimed that the average guarantied was for...