Patton v. Sinclaire Lumber Co.

• Decision Date: 20 December 1919
• Docket Number: 552.
• Citation: 101 S.E. 613,179 N.C. 103
• Parties: PATTON v. SINCLAIRE LUMBER CO.
• Court: North Carolina Supreme Court

101 S.E. 613

179 N.C. 103

PATTON v. SINCLAIRE LUMBER CO.

No. 552.

Supreme Court of North Carolina

December 20, 1919

Appeal from Superior Court, Buncombe County; Justice and Ray Judges.

Action by John E. Patton against the Sinclaire Lumber Company. Judgment for plaintiff, and defendant appeals. New trial.

Where written contract required defendant to furnish ground on which plaintiff could pile logs at a specified place, the written contract cannot be varied by parol evidence tending to show that defendant was to locate the piling ground near the terminus of a small railroad running to place named in the contract.

The action was brought to recover damages alleged to have resulted from a breach, on the part of the defendant, of a contract between the parties in regard to the cutting logging, and manufacturing into lumber of certain standing timber on land in the county of McDowell, near Old Fort being approximately four to five miles from that place. The contract was in writing, and its execution was admitted at the trial of the cause. The portions of the contract material to the controversy are:

"(1) The contractor shall cut into logs and saw into lumber and pile on sticks at the mill site, as directed by the company, all the merchantable timber standing, lying and being on the land above described according to the terms of this contract, and when dry to be delivered and piled on a side track of the Southern Railway Company at Old Fort said side track and sufficient piling ground to be provided by the company: Provided, however, if the contractor desires he shall have the right to haul lumber while green to the piling ground provided by the company on the side track at Old Fort, and place same in hacks in said piling ground as specified, and if this is done then said lumber shall be measured and the full contract price of $11.50 per thousand feet shall be paid on the 5th day of each month for all lumber so hauled and hacked during the preceding month. If, however, said lumber is hacked in the woods then said lumber is to remain on sticks not less than four nor more than six months.

(2) The contractor shall cut and log merchantable timber and manufacture the same into lumber and pile on yards at the rate of an average of 12,500 feet of lumber, board measure, per day, for at least 20 days of each month, except the months of January and February of each year, during the continuance of this contract, with the privilege to the contractor to cut, saw and deliver not exceeding 20,000 feet of lumber per day, beginning 30 days from date of contract and ending when all the merchantable timber to be manufactured under this contract shall have been cut and removed from said land.

(3) In consideration of the services rendered by the contractor in cutting, logging, sawing and placing on sticks, and delivery at Old Fort, of the merchantable timber therein agreed to be sawed, the company shall pay the contractor the sum of $11.50 per thousand feet, board measure, for all lumber sawed and put on sticks and delivered as aforesaid, $10 per thousand feet of the aforesaid amount to be paid when said lumber is placed on sticks on the yards at the mills; provided, however, that the poplar squares shall only be piled and shall at once be hauled to the railroad at Old Fort, and placed in the sheds provided by Geo. Chapman; the contractor to be paid in cash on or before the 5th day of each month for all lumber sawed during the preceding month according to the estimates. The final measurements of the lumber to be made by an inspector to be furnished by the company at Old Fort, and to be according to the rules laid down by the National Hardwood Association, and the contractor shall have the right to be present, if he so desires, at the time said measurements are made, or to have a representative present in his stead; provided, however, if the contractor desires he shall have the right to haul lumber while green to the piling ground provided by the company on the side track at Old Fort, and place same in hacks on the piling ground as specified, and if this is done then the lumber shall be measured and the full contract price of $11.50 per thousand feet shall be paid on the 5th day of each month for all lumber so hauled and hacked during the preceding month.

(4) The company shall pay to the contractor half of the amount necessary to secure right of way for removing logs and lumber. Said amount to be based on and determined by receipts presented to the company by the contractor, showing actual payments for said right of way.

(5) It is understood and agreed between the parties hereto that the contractor shall pay to the company $3 per thousand feet for all logs now cut and logged on yards, and 75 cents per thousand feet for all logs now cut and not on yards."

The plaintiff alleged a breach of the contract, in that:

(1) The defendant failed to pay for the sawing and delivery of lumber, as it had agreed to do.

(2) The defendant failed to pay for one-half the costs of rights of way.

(3) The defendant failed to furnish side track and piling ground at Old Fort, as it had agreed to do.

The plaintiff further alleged that after the execution of the contract, and after he had begun his preparations for commencing the work, the defendant was not ready for him to begin work, and that he was damaged by reason of having to hold idle his mill and teams in Asheville.

The plaintiff further alleged that, at the request of the defendant, he had stopped the operation of his mill for two or three days, and that he was damaged thereby.

The defendant answered, denying the material allegations of the complaint, alleging full payment to the plaintiff of all sums due him under the contract, and by way of counterclaim alleging a breach of the contract by the plaintiff, and an overpayment of all sums due the plaintiff by the defendant, and prayed judgment on the counterclaim.

At the time of the execution of the contract between plaintiff and defendant, there was a small tramroad running from Old Fort to a point about a half mile from the nearest timber. This tramroad, referred to in the testimony as a "dinky road," was, at the time of the execution of the contract, owned and controlled by third parties; neither the plaintiff nor the defendant having any interest whatever therein. The plaintiff, however, after the execution and delivery of the contract, acquired this "dinky road" and undertook to utilize it in the delivery of the lumber mentioned in the contract. The defendant contended that, at the time of the purchase of the tramroad by the plaintiff, there was no piling ground or Southern Railway side track adjacent thereto, but that it had furnished ample piling and side-track facilities at Old Fort, during the entire operations by the plaintiff, and some twelve months after the plaintiff commenced work it did have piling ground and side-track facilities at a point adjacent to the...