Matthews Co. v. Lincoln Co.

• Decision Date: 22 September 1927
• Court: Virginia Supreme Court
• Parties: BAKER MATTHEWS LUMBER COMPANY v. LINCOLN FURNITURE MANUFACTURING COMPANY, INC.

Page 413

148 Va. 413

BAKER MATTHEWS LUMBER COMPANY v. LINCOLN FURNITURE MANUFACTURING COMPANY, INC.

Supreme Court of Virginia, Staunton.

September 22, 1927.

Absent, Prentis, P.

1. OPEN AND CLOSE — Sales — Cancellation by Buyer — Resale and Action for Damages by Seller — Opening Statement of Counsel — Case at Bar. — The instant case was an action by the seller of lumber for damages for breach of contract by buyer. The buyer was building a new factory and asked for repeated extensions of time to receive the goods. Finally the buyer asked for a cancellation of the contract. The seller declined this in a letter saying that the fact that the market had declined should have no bearing on the matter, and saying that if the buyer was unwilling to receive the lumber, the seller would be obliged to sell the same and hold the buyer resonsible for any loss sustained. To this the buyer replied that in case the seller saw fit to act as suggested, "just go to it, you of course have the right to do as you please." This ended the correspondence and subsequently the plaintiff sold the lumber and charged the defendant with the difference. In his opening statement counsel for defendant stated that when it was found that defendant's plant would not be completed as early as anticipated various concerns were requested to withhold shipments of lumber purchased by defendant, which requests were complied with and subsequently the lumber was shipped and received by defendant, and that defendant intended all the while to receive the stock purchased from the plaintiff. Plaintiff assigned as error the refusal of the court to exclude this opening statement of counsel.

Held: That there was no merit in this assignment of error, as counsel was well within his rights in the statement he made.

2. OPEN AND CLOSE — Opening Statement of Counsel — Control of Trial Court. — Counsel should not in an opening statement refer to matters which under no circumstances could be introduced in evidence, for the purpose of influencing the jury, and while the scope of such statement is of necessity very wide, it is just as much uner the control and judgment of the court as the introduction of evidence or the argument of the case upon its merits.

3. OPEN AND CLOSE — Opening Statement of Counsel — New Trial Where Prejudice Results from Opening Statement. — Counsel should not be allowed to make the opening statement the medium of argument to the jury upon the merits, and where it is clearly made to appear that prejudice has resulted from an improper opening statement a new trial will be awarded.

4. SALES — Action by Seller Against Buyer — Breach of Contract by Buyer — Repelling Allegation by Seller that Buyer was Influenced by Falling Prices — Opening Statement of Counsel — Case at Bar. — In the instant case, an action for breach of contract by the seller of lumber against the buyer, a letter of plaintiff which was filed with the declaration contained the following language: "The fact that the market on this class of material has declined should have no bearing whatever on the matter." This was a poignant imputation upon the motive of the defendant in asking a rescission of the contract or a postponement of the shipment, and the defendant had the right to repel the insinuation that its motive was an improper one. The court properly admitted evidence to this effect when offered by the defendant, and counsel for defendant in his opening statement was within his rights in contradicting the insinuation.

5. QUESTIONS OF LAW AND FACT — Construction and Effect of Written Instruments for Court. — Construction and effect of written instruments are for the determination of the court.

6. SALES — Action by Seller for Breach of Contract — Construction of Written Documents for Court — Instructions — Case at Bar. — In an action by seller of lumber against buyer for breach of contract, plaintiff asked for an instruction that a certain letter of defendant to plaintiff constituted a refusal on the part of the defendant to accept the lumber in question. The court refused to give this instruction and instructed the jury that if they believed from the evidence in the case that the plaintiff was ready and willing to ship the goods at the time of delivery and the defendant refused to accept them, then the refusal was a breach of the contract to purchase on the part of defendant.

Held: Error, as by the latter instruction the court devolved upon the jury the duty of construing the letter and weighing its probative force along with the evidence of witnesses.

7. QUESTIONS OF LAW AND FACT — Interpretation of Documents for Court — Peremptory Instructions. — The statute against peremptory instructions has no application to that class of cases where the verdict of the jury depends upon the legal effect to be given to a written contract.

8. SALES — Breach of Contract by Buyer and Resale by Seller of Lumber — Lumber Resold of Same Specifications — Instructions — Case at Bar. — In the instant case, an action for breach of contract by the seller of lumber against the buyer, the court instructed the jury that plaintiff must prove that the lumber resold by the seller upon the breach was of the same specifications as the lumber sold the buyer.

Held: A correct statement of the law. The lumber bought was of certain specifications, and the lumber sold must, of course, be of the same specifications in order to correctly determine the amount of damages.

9. SALES — Resale on Breach of Contract — Seller Acts as Agent of Buyer — Good faith. — When a seller undertakes to resell goods bought, but not delivered, he acts as the agent of the buyer and is held to the exercise of good faith. If he has contracted to deliver lumber which has been refused, he thereafter holds this lumber as the property of the buyer, held by him in trust and to be disposed of by him to the best possible advantage.

10. SALES — Breach of Contract by Buyer and Resale by Seller — Lumber — Specifications — Instructions — Case at Bar. — In an action by seller of lumber for breach of contract by buyer, the seller had resold the lumber and charged defendant with the difference. The court instructed the jury that plaintiff must prove that the lumber resold was of the same specifications as the lumber sold defendant, and that the jury was not justified in inferring that the lumber was such without sufficient proof that the specifications of the lumber sold were the same and unless this was proved by a preponderance of the evidence, it was the duty of the jury to find for the defendant.

Held: That it was error to warn the jury not to enter into the realm of inference, in view of the uncontradicted evidence that the lumber resold was the same lumber sold to the defendant and set apart for him.

Error to a judgment of the Circuit Court of Smyth county, in an action of assumpsit. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

L. Preston Collins, for the plaintiff in error.

Buchanan & Buchanan, for the defendant in error.

CAMPBELL, J., delivered the opinion of the court.

This was an action of trespass on the case in assumpsit brought by the plaintiff in error against the defendant in error, to recover the sum of $850.00, alleged to be due the plaintiff by the defendant. The plaintiff is a Tennessee corporation engaged in manufacturing and selling lumber. The defendant is a Virginia corporation engaged in manufacturing furniture.

In April, 1923, the defendant placed an order with the plaintiff for 100,000 feet 4/4 common and select plain sap gum lumber at $49.50 per thousand feet. By the terms of sale, the lumber was to be delivered f.o.b. cars at Bristol, Virginia, and shipment shereof was to be made during the month of July.

The defendant, at the time the order was given, was erecting a new plant at Bristol. This plant, on June 11, 1923, was uncompleted. On this date the defendant wrote the plaintiff that their plant was uncompleted and requested that the shipment be delayed until notification. On June 23rd, plaintiff replied to this letter, agreeing to withhold shipment for a reasonable length of time. On July 9th the defendant wrote the plaintiff the following letter:

"Your letter of the 2ord has letter: the writer's absence from the office. We are goint to be quite frank with you and `lay our cards on the table.'

"This order for gum was placed with you for shipment to our new plant which was at that time under construction. We anticipated the approximate time when we would need this stock, but unforeseen delays have made it impossible for us to be ready at the time specified. The layout of our lumber yard will be such that we can only handle lumber direct from cars to kiln trucks. Our kiln storage tracks, as well as entire dry kiln equipment, have been delayed and construction on kilns and tracks will not be started until the plant is finished.

"We do not see any possibility of being able to receive this lumber before October, and we want to ask that, in view of this situation, you will release us from this order or hold up until we are ready to accept. We believe that you will be glad to do this, and assure you that it will be remembered in placing our future requirements for lumber."

Replying to this letter, plaintiff wrote defendant:

"We will have the stock ready for you at that time and will arrange to make delivery of the entire lot between October 1st and November 1, 1923."

On October 10th, plaintiff wrote defendant as follows:

"We received a letter a few days ago from Mr. H. N. Saxton, Knoxville, Tenn., wherein he stated that you had requested cancellation of your order No. 39 for 100,000 feet 4/4 No. 1 common and select plain sap gum for shipment to your new plant at Bristol, Va., your reason being based on the fact that your plant would not be completed this year. We now have before us a clipping from a Knoxville paper indicating that your plant is practically completed...