Monticello Plywood Box Co. v. Haney
| Decision Date | 13 June 1932 |
| Docket Number | 29962 |
| Citation | 142 So. 497,167 Miss. 622 |
| Court | Mississippi Supreme Court |
| Parties | MONTICELLO PLYWOOD BOX CO. v. HANEY |
(Division A.)
1 TRIAL. Instruction authorizing verdict for seller of lumber if jury believed buyer breached contract, held erroneous.
Instruction complained of merely directed the jury to return a verdict for the seller if it believed from the preponderance of the evidence that the buyer breached the contract, and failed to predicate the seller's right to recover upon his being ready, willing, and able to perform the covenants on his part contained in the contract.
2 SALES.
Where major part of lumber tendered by seller is defective and unfit for purpose intended, buyer may assume future deliveries will be of like character and cancel contract.
3 SALES. Instruction, in substance, authorizing recovery by seller of contract price if any part of lumber tendered substantially complied with contract, held erroneous.
Instruction, in effect, that, even if part of lumber manufactured and shipped to the buyer was not up to the specifications of the contract, there was no breach of contract which would entitle buyer to a verdict in an action by the seller for breach thereof, was erroneous, because the evidence presented a sharp controversy as to whether or not the major part of the lumber tendered was up to the required specifications, and, if in fact a major part of the lumber tendered by the seller in compliance with the contract was so defective as to be unfit for the purposes intended, the buyer had a right to assume that future deliveries would be of like character and would be entitled to cancel the contract.
APPEAL from circuit court of Lawrence county.
HON. J. Q. LANGSTON, Judge.
Suit by Smiley J. Haney against the Monticello Plywood Box Company. Judgment for the plaintiff, and the defendant appeals. Reversed, and cause remanded.
Reversed and remanded.
G. Wood Magee, of Monticello, for appellant.
Instruction No. 1 for plaintiff is condemned by the case of Milling Company v. Langford, 81 Miss. 728, because this instruction fails to predicate plaintiff's right to recover upon his ability to comply with his part of the contract, and because it did not advise the jury that the only damages he could recover, if any, were those which were the natural and proximate results of the defendant's wrong, if any.
Instruction No. 2 for plaintiff is error because it tells the jury to find for plaintiff even though they may believe from the evidence that part of the lumber was not in accordance with the terms of the contract and that the machinery used in manufacturing the lumber was defective unless they believed that the plaintiff failed and refused in some other particular to comply with his part of the contract. Speaking with reference to the defects in this instruction, I will say that it is beyond me to see in what other material particulars the plaintiff could have failed, except perhaps he might have failed in delivering the defective and useless lumber at the time and place he agreed to deliver it.
Instruction No. 4 for plaintiff is subject to the same criticism as instruction No. 2, because it tells the jury that if defendant breached the contract merely because part of the lumber was not up to plans and specifications and that the machinery used to manufacture same was defective, their verdict should be for plaintiff.
The evidence justified the conclusion that plaintiff's machinery--planer mill, was in such a bad state of repair as to cause him to be unable to manufacture the lumber contracted for. Certainly if the plaintiff was unable for any reason to supply the lumber he agreed to supply and did not supply same as he agreed, and was prohibited trader the contract, as the court said in an instruction, to go into the open market to supply the lumber, he cannot be allowed to recover.
Milling Company v. Langford, 81 Miss. 728.
C. E. Gibson, of Monticello, for appellee.
While we do not admit error in instruction No. 1, a reading of the instructions granted by the court at appellant's request clearly and fully announce every principle of law which appellant here contends should have been contained in this instruction.
This court has held time and again that all the instructions in a case should be considered together a; one instruction.
Brister v. Dunaway, 115 So. 36; Freidman v. Allen, 118 So. 828.
A judgment will not be reversed because of the granting of an erroneous instruction to the jury unless is affirmatively appears from the record that the party complaining thereat was prejudiced thereby.
Supreme Court Rule, 95 So. 835.
A particular or general custom or usage may be proved to vary the usual meaning of the language of the contract, or to impart a term not expressed therein.
The appellant had no right to cancel the contract because the car contained only a few hundred feet of culls. Not only the custom, but the rules under which all mills are governed, permit a certain percentage of culls to be included in a car. It is elementary law that you cannot cancel an entire contract merely because there happens to be some minor failure as to a part of the contract. A substantial compliance is all that is required.
The proof shows that the appellee was ready and willing to carry out his part of the contract; that without any fault on his part it was breached and broken and that he sustained a loss on the order of six dollars ($ 6) per thousand feet.
If complete performance of a contract is prevented by either party, the other, who is willing and able to perform, must be compensated in damages to the extent of making him whole.
Beach v. Johnson, 102 Miss. 419; White v. Leatherberry, 82 Miss. 103.
The appellee, Smiley J. Haney, filed this suit in the circuit court of Lawrence county against the Monticello Plywood Box Company, for damages for the alleged breach of a contract of sale of lumber, and, from a judgment for the appellee for one thousand four hundred thirty dollars, the defendant prosecuted this appeal.
The appellee was a manufacturer of lumber at Monticello Mississippi, and the appellant was engaged in the manufacture of plywood boxes in the same town. The appellee secured an order to sell and deliver to the appellant, at its plant, five hundred thousand feet of air-dried lumber of a certain kind and grade, of the uniform thickness of three-quarters of an inch, at a stipulated price. This lumber was ordered for the purpose of being used in making cleats or rims for plywood boxes, and the testimony is to the effect that these cleats or rims were nailed or fastened on the plywood material with pressure hammers, and, in order for these hammers to operate effectually, it was necessary for the lumber to be sized and dressed to a uniform thickness. The appellee purchased and installed a planer, and proceeded to manufacture a part of the lumber, and thereafter delivered to the appellant one car of lumber containing about twenty...
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