Moss Point Lumber Co. v. Thompson

• Decision Date: 08 February 1904
• Court: Mississippi Supreme Court
• Parties: MOSS POINT LUMBER COMPANY ET AL. v. VIRGINIA M. THOMPSON, ADMINISTRATRIX

35 So. 828

83 Miss. 499

MOSS POINT LUMBER COMPANY ET AL. v. VIRGINIA M. THOMPSON, ADMINISTRATRIX

Supreme Court of Mississippi

February 8, 1904

FROM the chancery court of Jackson county. HON. STONE DEAVOURS Chancellor.

Nathaniel Q. Thompson, appellee's intestate, was the original complainant in the court below; upon his death, pending the suit, the cause was renewed in the name of appellee, Mrs Thompson, the administratrix of his estate; the Moss Point Lumber Company and another, appellants, were defendants there. From a decree in complainant's favor the defendants appealed to the supreme court.

In March, 1899, David M. Powell, one of the appellants, made a contract to sell and deliver to appellant "at the usual place of delivery at Moss Point," 2,500 pine logs at stated prices, and afterwards he entered into other contracts to deliver 5,000 logs at stated prices. The Moss Point Lumber Company agreed to advance to Powell seventy-five cents per log, through N. Q. Thompson, on all logs in the water, and "provisions or money to be used in manufacturing said saw logs and rafting them to market;" "the final settlement of accounts to be made when the saw logs reached the market"; and Thompson advanced Powell considerable amounts while he was engaged in the cutting and hauling the logs. On December 23, 1899, Thompson wrote to the Moss Point Lumber Co.: "Yours to hand. * * * Will ask now how you understand the contracts of Mr. Powell with you. The way I took it I would be entitled to draw anything the logs brought over sixty cents on the first three contracts, and all over seventy-five cents on the last contract. Let me know if this is the way you understand it. I am paying cash almost daily for logs, and I must know where the money I furnish over the sixty and seventy-five cents is coming from. If you will agree to turn it over to me as fast as the logs come in, that is the balance over sixty and seventy-five cents which you have paid to me, I can arrange to run it. * * *" On January 1, 1900, the Moss Point Lumber Company answered this letter as follows: "Replying to yours of the 23d. We are willing to settle with you for the Powell logs as requested and as we understand it, that is: First contract we made with Mr. Powell was for 2,500 logs, with an advance of sixty cents per log on all logs in the water, later we made an additional advance of fifteen cents per log on all logs. Logs put in under the first contract were branded B. P. Now when sufficient number of this brand comes in to pay the seventy-five cents per log we have advanced on them, then all in excess of that amount we will pay to you, and so on with other contracts. * * * Soon as we finish measuring, will send statement. Tell Mr. Powell to let us know to whom to pay raftage, and how much." Powell owed Thompson considerable money, and Thompson filed the bill in this case in the chancery court of Jackson county against Powell and the Moss Point Lumber Company, seeking to recover the proceeds of the logs less the seventy-five cents per log already advanced, and asked that an accounting be had to show what that was. Both defendants answered the bill, and evidence was taken. It was shown that the Moss Point Lumber Company paid, in addition to the seventy-five cents advanced on each log delivered, about $ 838 expenses of rafting and boomage. On the hearing the chancellor ordered an account to be stated, and appointed a commissioner to state the account and directed him to find the total number of logs delivered by Powell under the contracts, and to find the gross sum paid for the logs, and from that sum to deduct all sums already advanced to complainants, and report the difference as the amount due by the Moss Point Lumber Company to complainant; thus denying the charges for rafting and boomage to said defendant, which it had paid. The commissioner so stated the account, and a final decree for complainant including these sums was rendered by the court below.

Decree reversed and cause remanded.

Ford & White, for appellants.

The question presented by this appeal depends for its solution upon the proper construction of a single clause in a letter written by appellant to N. Q. Thompson, the original complainant in the court below, and which letter constituted the contract, or agreement between the parties.

The letter out of which the controversy arose says they, the lumber company, had a contract, first with Powell, for 2,500 logs, that the company was to pay an advance of sixty cents per log on all logs in the water, later on they made an additional advance of fifteen cents per log on all logs. Now when sufficient number of this brand comes in to pay seventy-five cents per log we have advanced on them, then all in excess of that amount we will pay to you, and so on with the other contracts, etc.

The appellant's contention is that the chancellor erred in construing the letter to mean that the lumber company should remit Thompson the gross amount that the logs should bring under the contracts, and thereby prevent them from retaining $ 839.05 which they paid out for boomage and raftage on the logs, some of it prior to the writing of this letter and some subsequent. It was not contended that the lumber company did anything that estopped or precluded them from insisting upon this claim for boomage and raftage, but that an agreement to remit all the proceeds meant each and every dollar that they should bring. Both parties concede...