Oden-Elliott Lumber Co. v. Daniel-Gaddis Lumber Co.

Decision Date29 November 1923
Docket Number6 Div. 748.
PartiesODEN-ELLIOTT LUMBER CO. v. DANIEL-GADDIS LUMBER CO.
CourtAlabama Supreme Court

Rehearing Denied Jan. 24, 1924.

Appeal from Circuit Court, Jefferson County; J. O. Smith, Judge.

Action by the Daniel-Gaddis Lumber Company against the Oden-Elliott Lumber Company, for breach of contract. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Vassar L. Allen and W. B. Harrison, both of Birmingham, for appellant.

Tillman Bradley & Baldwin, and John S. Coleman, all of Birmingham for appellee.

THOMAS J.

The suit is assumpsit for damages for breach of contract by defendant in failing and refusing to receive certain poplar lumber that defendant had bought from plaintiff.

Defendant pleaded the general issue and special pleas, averring that the lumber tendered was not according to specifications; that defendant was forced to buy other lumber of the kind specified at an enhanced price, which was offered as a set-off to plaintiff's demand.

There was no error in permitting the witness R. D. Stewart to state, as his "best recollection," that the lumber graded "about 35 per cent. 1 common and better; I believe I would think 40 per cent. 1 common and better; I would reduce that some-30 to 35 per cent. 1 common and better; and there was something like the same amount of No. 2 B common and 2 A common; the balance was No. 2 and No. 3 common." The witness was shown to have had a distinct recollection of his inspection of the lumber and the percentages of the several grades thereof. 1 Greenl. (15th Ed.) § 437, p. 572; 22 C.J. p. 895; 5 Jones on Evidence, § 876, p. 310. When this is the fact, it is not the memorandum that speaks, but "the recollection of the witness." Acklen's Ex'r v. Hickman, 63 Ala. 494, 35 Am. Rep. 54; Floyd v. Pugh, 201 Ala. 29, 77 So. 323. Where the witness testifies that he made a written memorandum of the facts at the time of the occurrence, and knew that it was correct when made, when he does not remember the facts he may read the memorandum as a part of his evidence. Floyd v. Pugh, 201 Ala. 29, 77 So. 323; Warten v Black, 195 Ala. 93, 70 So. 758; L. & N. R. Co. v. Moorer, 195 Ala. 344, Mims v. Sturdevant,

36 Ala. 636.

The witness R. D. Stewart, having qualified as an expert inspector, and having testified how plaintiff's lumber was stacked, and the method of stacking such lumber as observed by other manufacturers and dealers therein, a jury question was presented as to whether plaintiff had employed the proper method of stacking the lumber, made the subject of the suit, as per contract provisions "to be on sticks for 30 days." The witness had said on cross-examination that "when we receive an order like that we always load" by the rules of the National Hardwood Association. There was reversible error in declining to permit the witness to answer, as an expert, the general question: "Was this lumber you inspected for the Stone Company on the yards and in separate stacks in accordance with the practice observed by hardwood manufacturers and dealers?" Alabama, etc., Co. v. Pitts, Adm'r, 98 Ala. 285, 13 So. 135; Cohn, etc., Co. v. Robbins, 159 Ala. 289, 48 So. 853; Standard, etc., Co. v. Dearman, 204 Ala. 553, 555, 86 So. 537. This was a matter of expert, and not of common, knowledge. Sloss-Sheffield S. & I. Co. v. Reid, 184 Ala. 647, 64 So. 334; 22 C.J. p. 656,§§ 755, 756, 757.

Assignments of error challenge the refusal of the court to exclude the answers (in his deposition) of the witness Wynn as to his transactions with Cherry as agent of defendant. Third persons may testify of the fact of agency-and Cherry himself testified to the same transactions detailed by the witness Wynn. Roberts & Sons v. Williams, 198 Ala. 290, 73 So. 502. One of the defendant partners testified that he sent Cherry to plaintiff's to receive and ship the lumber, and that it was refused "on the report from" such agent. There was no error in the admission of the deposition of Wynn containing the foregoing statements of the fact of agency and of tender and refusal of acceptance of the lumber per terms of the contract.

The refusal to accept other lumber from plaintiff was during the month of September, 1920. And the witness Wynn testified there was available stock and lumber on the yards to have completed the contract had it not been refused by defendant or its accredited agent. Defendant introduced as a witness that agent, who, without objection, was permitted to testify of the approved way of stacking such lumber in the yards of millmen and dealers; the failure of compliance with the contract specifications as to stacking and drying; the effect of properly restacking the same. There was no error in sustaining objection to the question:

"Had that the lumber been left in the condition in (which) you found it, in what condition would it likely (have) been in by February or March as to being sound or rotten?"

Plaintiff objected to the question as being illegal, irrelevant, incompetent, and immaterial, and the objection was sustained. Counsel for defendant then stated to the court: "Trying to show the condition was improved by being taken down," to which the court replied: "He has stated that. What it would be in February has nothing to do with it." Defendant's counsel further stated:

"I want to show it would probably have been rotted by February if it hadn't been taken care of. We offer to show that by this witness, and your honor sustains the objection?"

The court replied, "Yes, sir," and to this ruling of the court the defendant duly reserved an exception. Manifestly the condition of the lumber at the subsequent period sought to be inquired about was immaterial.

If any of the lumber had been reduced from any cause from a higher grade to a lower grade within the classes sold and within the specifications of the contract, it should have been accepted. There was no error in sustaining objection to defendant's question: "At that time, Mr. Cleaney, that is, about September, 1920, what would have been the reduction in value, and what is your best recollection of the first and better, if reduced by stain to No. 2?" The grade sold was "No. 3 common and better"; the price of the grade inquired about was fixed by contract at $55 per thousand.

The question to the witness Johnson, an expert, "Now, if No. 3 common and better poplar is bought, and the contract, Mr. Johnson, specifies that it shall be put on sticks, state whether or not in the lumber trade it is to be considered that lumber, stacked as I have described to you, had been put on sticks?" does not invade the province of the Jury. The defendant had been permitted to show by experts what "putting on sticks" meant in the lumber trade, to show the proper manner of stacking the lumber in question, as a basis for the inference to be drawn by the jury as to whether or not the lumber referred to "was on sticks." Standard, etc., Co. v. Dearman, 204 Ala. 553, 86 So. 537. The bill of exceptions recites on this ruling:

"Plaintiff objected to the question. The court sustained the objection. Defendant's counsel inquired of the court: 'I would like to know on what ground, your honor?' Plaintiff's counsel interjected, 'On the ground it invades the province of the jury.' The court stated, 'On the ground, Mr. Allen, I have allowed you to prove by these experts what putting on sticks means in the lumber trade. You have also proved how this particular lumber was stacked, the actual stacking of the lumber; as to whether it was on sticks as set out in that contract is a matter for the jury to say. That is set up in one of your pleas as to how it was required.
I sustained the objection.' To which ruling of the court the defendant then and there duly and legally expected. The court further stated to defendant's counsel: 'He can tell how that ought to be stacked according to the rules of the lumber trade in his territory."' 22 C.J. pp. 656-659, §§ 756, 757.

Since the case is to be retried, we should say that the questions to Mr. Eddy made the basis of the fifteenth and sixteenth assignments of error should have been answered by him as an expert, on proper predicate. B. & A. Ry. Co. v. Campbell, 203 Ala. 296, 82 So. 546.

It was not competent to show what price Mr. Oden paid for lumber to replace that not manufactured and delivered per terms of the contract. The price he may have paid for poplar lumber for special reasons-without regard to the market price at the place of delivery-did not measure the damage for failure to manufacture and deliver the lumber according to the terms of the contract. Gwin v. Hopkinsville Mill. Co., 190 Ala. 346, 67 So. 382; Crandall-Pettee Co. v. Jebeles & Colias Conf. Co., 195 Ala. 152, 69 So. 964. On the other hand, under the evidence the jury could take into consideration the market price, what it would cost to load on cars at the mill, and what the plaintiff realized on a resale and shipment of the rejected lumber at the same place and market, in ascertaining whether plaintiff was damaged, and, if so, in fixing that damage. It was the duty of plaintiff to diminish the damages if it could reasonably do so. Cato v. Williamson, 209 Ala. 477, 96 So. 321; H. Curjel & Co. v. Hallett Mfg. Co., 198 Ala. 609, 621, 622, 73 So. 938. The buyer had the duty of showing the cost of loading where there was rejection and no necessity for loading. However, the court stated to defendant's counsel that he might "prove *** any No. 3 or better that he had to go into the market and buy to make up this contract for the breach of the other." The witness (J. W. Oden) was then permitted to make such proof by offering in evidence the written order fully setting out the terms of purchase of the other lumber at Mobile.

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