Paepcke-Leicht Lumber Co. v. Talley

• Decision Date: 03 February 1913
• Citation: 153 S.W. 833,106 Ark. 400
• Parties: PAEPCKE-LEICHT LUMBER COMPANY v. TALLEY
• Court: Arkansas Supreme Court

153 S.W. 833

106 Ark. 400

PAEPCKE-LEICHT LUMBER COMPANY v. TALLEY

Supreme Court of Arkansas

February 3, 1913

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

Judgment affirmed.

William C. Gilbert, Hawthorne & Hawthorne and Coleman & Lewis, for appellant.

1. The term "board measure" has a generally well understood meaning, and has for its unit the "board foot," which is "a board one foot long, one foot wide and one inch thick, but in reality is equivalent to 144 cubic inches of manufactured lumber in any form." 10 Enc. Brittanica (11 ed.), 658. It was the duty of the court to construe the contract and declare its terms to the jury instead of submitting its interpretation to them. 77 Ark 272; 89 Ark. 239.

2. Since the contract was plain and certain on its face evidence of a custom was inadmissible to vary or contradict its terms. 54 Ark. 423; 100 U.S. 629; 186 F. 612; 2 Cromp. & J. 249; Jones on Evidence, § 465; Id. 462-7; 84 Ark. 389.

Where there is an irreconcilable conflict as to the existence, or as to the nature, extent or limitations of an alleged usage, it can never be enforced as one of the terms of a contract. 181 F. 483; 143 F. 949. The evidence of the alleged custom does not measure up to the requirements of the law, because, it is unreasonable; it is not established; it was not known to the parties; it is inconsistent with the contract; it is not general and the alleged custom is too indefinite and vague and is based upon such conflicting testimony that it lacks that degree of certainty which would be required even in a written stipulation. Supra.

3. Giving the evidence its strongest probative force in favor of plaintiff, it still conclusively shows that there was no breach of the contract by defendant. Defendant's order for the thin stock at the quoted price, even if wrong, did not constitute a breach of the contract. 99 U.S. 560; 74 Vt. 382; 42 A. 1061; 147 Ill. 504, 35 N.E. 741; 12 Col. App. 75, 54 P. 399; 3 Page on Contracts, § 1341; L. R. 45 Ch. D., 481; 72 F. 244; 20 Mont-347; 112 Ga. 366; 130 N.W. 354; 38 Ark. 179; 64 Ark. 230.

And such order did not constitute a renunciation of the contract. Hammond on Contracts, 892; 137 F. 308; 117 U.S. 490; 105 F. 324; 9 Cyc. 636; 137 F. 300, 308.

4. The contract was severable, and if it be conceded that appellant was bound to accept the thin stock and pay for it according to the price demanded by plaintiff, the refusal to do so was only a partial breach of the contract, and was not such breach as would entitle him to recover prospective profits which he would have earned in the event of full performance. Anson on Contracts, 363; 137 F. 308; 9 Ill. 319; 78 Ill. 27; 140 N.Y. 287; 84 N. W. (Mich.), 69; L. R. 9 App. Cas. 434; 26 Ark. 309-14.

Block & Kirsch, M. P. Huddleston and R. P. Taylor, for appellee.

1. The meaning of the term "board measure" was for the jury to pass upon. By the custom or usage of the trade board measure pays no attention to the thickness in lumber that is less than one inch thick. See Southworth-Stone Arithmetic, book 3, p. 113; Ray's New Higher Arithmetic, 139; Wentworth's Practical Arithmetic, 197.

A custom or usage need not be pleaded in order to admit the introduction of proof with regard to it. 85 Ark. 568; 69 Ark. 313. There is always a question for the jury to settle when any of the words or terms of a contract have a disputed meaning, or are technical, or words of art, or by custom and usage are given a meaning other than the ordinary meaning of the words. Wigmore on Evidence, § 2556; Page on Contracts, § 1129; 55 N. W. (Minn.), 139; 5 M. & W. 535; 22 C. C. A. 83; 58 C. C. A. 634; 49 N. E. (N. Y.), 56; 25 A. 138.

This contract was drawn up by appellant's representative. If, therefore, the court had undertaken to construe its ambiguous terms, it would have been its duty to give that construction to those terms which would be most favorable to the appellee. 90 Ark. 88; Id. 256; 73 Ark. 338; 74 Ark. 41.

2. That a wrongful or excessive demand under a contract is not in itself a breach of contract, is conceded, and the court so charged the jury; but, under the facts and circumstances shown in evidence, the jury were warranted in finding that there was such a renunciation of the contract as justified appellee in treating it as breached. 78 Ark. 336; 48 Minn. 113, 50 N.W. 1029; 126 S.W. (Mo.), 969; 152 Ill. 59; 178 U.S. 1; 30 C. C. A. 208.

3. There is no ground whatever upon which to base a contention that this contract is severable; on the contrary, it is indivisible and a breach of one part goes to the whole of it. 63 F. 84; 115 U.S. 188.

MCCULLOCH, C. J. WOOD, J., dissents. SMITH, J., not participating.

OPINION

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, Arkansas. 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 fulfil 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 out), $ 14.

"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) 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...