Mcmillian v. Louisiana Mfg. & Mercantile Co., Limited
| Decision Date | 28 February 1910 |
| Docket Number | 17.867 |
| Citation | 51 So. 1013,125 La. 854 |
| Parties | McMILLIAN v. LOUISIANA MFG. & MERCANTILE CO., Limited |
| Court | Louisiana Supreme Court |
Rehearing Denied March 28, 1910.
Appeal from Fifteenth Judicial District Court, Parish of Calcasieu Winston Overton, Judge.
Action by J. P. McMillian against the Louisiana Manufacturing & Mercantile Company, Limited. Judgment for defendant, and plaintiff appeals. Affirmed.
Goudeau & Barbe and P. A. Sompayrac, for appellant.
McCoy Moss & Knox, for appellee.
This is an action sounding in damages on the ground that defendant violated its contract.
The contract is dated the 12th day of October, 1908, in which defendant agreed and contracted with plaintiff to cut all of the stumpage owned by defendant on certain lands.
The following is a copy of the contract:
The defendant denies all indebtedness to plaintiff, and denies particularly that the contract would have netted to plaintiff $ 2.75 per thousand feet, as it was to him a losing contract.
The defendant company further states in its defense that the contract was annulled and defendant released from all obligations.
The defendant's contention, urged in the alternative, is that plaintiff defaulted in failing to build and have in operation a sawmill of not less than 10,000 feet per day capacity within the said 90 days; that he further failed to properly dry the lumber cut from the logs it delivered to him; that he failed to properly cut the lumber, and, in trimming the lumber, he had no cut saw in his mill although it was agreed verbally that he would install a cut saw therein; that he failed to deliver the lumber manufactured.
The defendant reconvened and claimed $ 200.84, for which it asked for judgment in reconvention.
The defendant filed a supplemental answer in which it alleged with more detail the asserted annulment of the contract, and pleaded that plaintiff was concluded by his acquiescence.
Plaintiff's demand was rejected, and the amount claimed by defendant in reconvention was allowed.
Plaintiff appeals.
Among the defenses defendant pleaded that plaintiff was estopped by reason of the defendant company advising with plaintiff in regard to the contract in question and of his advising as best to abrogate the contract; that plaintiff is a stockholder of the defendant company, and that he is bound by his conduct and acquiescence in matter of this contract.
Of this later.
On the other hand, plaintiff by motion asked the court to appoint two experts to examine the lumber which he had manufactured for the defendant under the contract.
The motion was overruled.
Plaintiff, after judgment had been rendered against him, filed a motion for a new trial, in which he averred that his mill was of the capacity required by the contract. Furthermore, that an inferior grade of lumber was, as we understand, purposely placed before the witnesses as lumber which plaintiff had manufactured, although it was not lumber of plaintiff's manufacture. The latter was good lumber, and the former was very inferior.
The motion for a new trial was overruled.
During six days the trial was heard in the district court. On the morning of the fifth day the plaintiff asked the court to appoint, as before stated, two lumber graders as experts to repair to plaintiff's mill, and after examination make a return about the quality of the lumber manufactured by plaintiff for defendant.
The district judge refused the application.
The town of Merryville, we infer, is at some distance from the parish seat. It is at or near that town that the sawmill is situated. The court evidently did not consider that there was necessity for other expenses and delays after the days of trial.
Having read the testimony, we are not of opinion that he erred. It was ample to prove all the material facts. The report of two graders would not have changed the result.
A number of witnesses testified, some of them graders and others experienced lumber manufacturers. They had seen the lumber when it was being manufactured and after it had been manufactured.
As to experts we conclude:
It does not require a board of experts to grade lumber. The grade can be shown by the evidence of witnesses. Experts may be appointed when the court deems it necessary. Code of Practice, art. 442.
The trial judge in directing the trial is vested with some discretion, and unless it appears that he has greatly erred in declining to appoint experts his ruling will not be disturbed.
We are informed by the contract that the plaintiff was to saw defendant's logs at his mill for $ 6.50 per thousand, and deliver them for use at defendant's planing mill.
One of the complaints of plaintiff is that the delay with which he is charged by defendant was caused by delay on defendant's part in delivering the logs to be sawed at the mill.
The testimony on the subject is conflicting. It does not satisfactorily appear that plaintiff reminded the defendant of its duties as contracting party to promptly deliver the logs if the defendant company desired prompt delivery of the lumber. There is evidence that the logs were delivered promptly and that there was very little delay. The weight of the evidence, it seems, was with the defendant upon this point.
With reference to the sawmill: We are informed that it was a small size circular sawmill.
The contract provided for a mill of 10,000 feet per day. Instead of 10,000 feet, the evidence shows that its capacity was less than 8,000.
From the contract we infer that it was to be 10,000 board measure and not log measure, as contended by plaintiff. But even if the contract be construed as having provided for a mill of 10,000 capacity log measure, the difference between log measure and board measure would not make the mill equal to 10,000 capacity. The difference is 15 per cent. or less. That percentage on about 7,000 feet log measure would not be equal to 10,000 feet board measure.
Besides, there is testimony that the difference was not as great as 15 per cent.
The difference in the number of feet of lumber was of moment...
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