Paepcke-Leicht Lumber Co. v. Talley

• Decision Date: 03 February 1913
• Citation: 153 S.W. 833
• Parties: PAEPCKE-LEICHT LUMBER CO. v. TALLEY.
• Court: Arkansas Supreme Court

153 S.W. 833

PAEPCKE-LEICHT LUMBER CO. v. TALLEY.

Supreme Court of Arkansas.

February 3, 1913.

Appeal from Circuit Court, Greene County; Frank Smith, Judge.

Action by W. E. Talley against the Paepcke-Leicht Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

William C. Gilbert, of Chicago, Ill., Hawthorne & Hawthorne, of Jonesboro, and Coleman & Lewis, of Little Rock, for appellant. Block & Kirsch, M. P. Huddleston, and R. P. Taylor, all of Paragould, for appellee.

McCULLOCH, C. J.

This is an action instituted by plaintiff, W. E. Talley, against defendant, Paepcke-Leicht Lumber Company, to recover damages for the alleged breach of a contract between the parties, whereby the plaintiff agreed to sell, and the defendant agreed to buy, about 8,000,000 feet of gum lumber, to be sawed from timber owned by plaintiff in Greene county, Ark. The plaintiff owned two large bodies of land in Greene county; the gum timber thereon being estimated to contain about 8,000,000 feet. They entered into a written contract, of the date of June 28, 1907, for the sale and delivery of the lumber at the price of $14 "per thousand feet, board measure, f. o. b. cars Black Walnut Corner and Marmaduke, Arkansas." No lumber was ever accepted under the contract and this action is to recover the total amount of profits which plaintiff would derive from the performance of the contract; the aggregate amount of damages being laid in the sum of $29,609, specified in the complaint as follows:

                First.   Failure to accept and pay for the
                          thin lumber ............................  $ 4,109 00
                Second.  Profit lost on the sale of 1,000,000
                          feet, being the difference between
                          the contract price and
                          the price at which it was sold .........    4,000 00
                Third.   Profit lost on the sale of 500,000
                          feet ...................................    1,500 00
                Fourth.  Profit lost on the sale of 1,000,000
                          feet ...................................    2,000 00
                Fifth.   Profit lost on the sale of 1,000,000
                          feet of logs ...........................    4,000 00
                Sixth.   Profit which would have been realized
                          on 3,500,000 feet of timber
                          at Walnut Corner .......................   14,000 00
                                                                    __________
                            Total ................................  $29,609 00
                

At the date this contract was entered into, there was in existence a prior contract between the same parties for the manufacture and sale of a large amount of gum lumber by plaintiff for the defendant, which contract was in course of performance; but it was agreed between them that the prior contract should be considered as fully performed when 250,000 feet of lumber should be delivered under the new contract. The contract also stipulated that the plaintiff should have the right to fill a contract which he had previously made with another concern for the sale of about 2,500,000 feet of gum lumber manufactured from one of the tracts of land.

The particular provisions of the contract bearing upon the question at issue in this litigation are as follows:

"Manufacture: It is a substantial requirement of this agreement that the lumber covered by same shall be manufactured in a good and workmanlike manner and to standard thickness to conform with instructions to be given from time to time by the second party. It being further understood that the lumber cut hereunder will be manufactured from only merchantable logs.

"Operation of mill: It is expressly agreed that the first party shall continue the operation of said mills for the second party exclusively, when cutting gum lumber, except when prevented by the making of necessary repairs, by fire, or other casualties; it being further understood and agreed between the parties hereto that first party shall have the right to fulfill its contract for two and one-half million feet (2,500,000) of gum lumber for the Cannon Box Company, at the Marmaduke Mill. * * *

"Prices: Second party is to pay to the first party for all lumber loaded and shipped hereunder the following price per thousand feet, board measure, f. o. b. cars Black Walnut Corner and Marmaduke, Arkansas. Log run gum (mill culls or No. 3 common cut), $14.00.

"Advances: Second party agrees that it will, as soon as practicable after the execution of the contract, estimate the lumber contained in full and complete piles on the lumber yards of the first party, and that it will between the first and fifth of each succeeding month during the life of this agreement, estimate the lumber contained in full and complete piles, manufactured and piled by the first party since the last preceding estimate, and that it will advance to the first party on account of the purchase price of the lumber included in said piles which is to be paid for the sum of ten dollars ($10.00) per thousand feet, provided, however, that at or before the making of any of the said advances, first party shall execute and deliver to the second party a bill of sale covering all the lumber included in the piles estimated as aforesaid with full covenants of warranty in form satisfactory to the second party, and that the said first party shall, upon the execution of this agreement deliver to the second party a satisfactory lease covering the grounds to be used as lumber yards on which the lumber manufactured hereunder is to be piled, together with access thereto from the railroad spur from which the lumber is to be loaded; it being understood and agreed that said advance payments shall be deducted from proceeds of the lumber when loaded on cars and shipped. * * *

"Inspection: It is understood that the second party will, as soon as practicable after receiving notice in writing from the first party that there is at least 100,000 feet of lumber on each yard which has been on sticks for at least ninety (90) days and is shipping dry, send an inspector to measure and inspect same with said first party, or its representative, provided, however, that the first party is to make such inspection at all times when requested by the second party, and that, if the first party shall fail so to do, the inspection of the second party thereupon made shall be final. Such inspection, whether mutual or otherwise, shall be made in accordance with the rules of the National Hardwood Lumber Association in force at this time, and shall be final in determining the amount to be paid hereunder, except as to such boards upon which the inspectors cannot agree as to measurements or grade and when 30,000 feet of the latter shall have accumulated, if either party so desires, a joint written request shall be forwarded to the secretary of said association asking that an official inspector of said association be sent to measure and inspect the lumber in dispute. Said official measurement and inspection when made shall be final and binding as to the boards included therein. Expense of all official inspection shall be paid for in the first instance by the second party, and one-half the costs shall be deducted from the purchase price of the said lumber. * * *

"Settlements: Settlement is to be had between the parties hereto on or about the 5th and 20th of each month for all lumber loaded and shipped prior to such time. Final settlement, unless otherwise mutually agreed upon, shall be had between the parties hereto when payment for the last car load shipped hereunder shall be due."

The trial of the cause before the jury resulted in a verdict in plaintiff's favor for damages, assessed in the sum of $9,998, and the defendant has appealed.

This litigation grows out of a controversy between the parties as to the proper construction of the contract concerning the basis for measuring the lumber, and that is the chief question presented for our determination.

Before any lumber was sawed under the contract, the defendant gave directions, as it had the right to do, for the lumber to be sawed in thickness less than one inch — thin lumber, as the parties termed it — and took the position that the words "board measure," as used in the contract, meant actual measurement of the length, width, and thickness of lumber, computing 144 cubic inches to the foot. Upon this measurement the price of the lumber, as claimed by defendant, would have been as follows:

                3/8' ................... $ 7 00 per thousand
                1/2' ...................   7 00  "     "
                5/8' ...................  10 50  "     "
                

The plaintiff, on the other hand, insisted that the words "board measure" is a commercial term, meaning measurement of thin lumber according to length and width, without regard to thickness, counting everything one inch and under in thickness the same. The price, therefore, according to the plaintiff's contention, would have been $14 per thousand feet for thin lumber.

The parties adhered to their respective constructions of the contract, and this litigation resulted; each alleging a breach of the contract on the part of the other.

The court submitted the issues of fact involved in the construction of the contract to the jury upon instructions, some of which were requested by each party, and the jury determined the issue in favor of the plaintiff.

The court, in instructions given of its own motion, defined the issue as follows: "The plaintiff's contention is that, under the rules of this association and the custom of the trade, the dimension of thickness is unimportant, except where the lumber to be measured exceeds one inch, and that all lumber under...