Philip Gruner Lumber Co. v. Algonquin Lumber Co.

• Decision Date: 12 July 1920
• Docket Number: No 21187,21187
• Citation: 123 Miss. 157,85 So. 191
• Court: Mississippi Supreme Court
• Parties: PHILIP GRUNER LUMBER CO. v. ALGONQUIN LUMBER CO. ET AL

85 So. 191

123 Miss. 157

PHILIP GRUNER LUMBER CO. v. ALGONQUIN LUMBER CO. ET AL

No 21187

Supreme Court of Mississippi

July 12, 1920

March 1920

APPEAL from chancery court of Lauderdale county, HON. G. C. TANN Chancellor.

Suit by the Philip Gruner Lumber Company against the Algonquin Lumber Company and others, with cross-bill by defendant named. Judgment for defendant, dismissing the bill and awarding judgment on cross-bill, and complainant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

C. D. Christman, for appellant.

The Algonquin Lumber Company was not released from its obligation to fill the two contracts by anything said by Mr. Roy, for the following reasons: 1. Roy was not a general agent of the Gruner Lumber Company and this was well known to the Algonquin Lumber Company, because they had had the contracts confirmed from the St. Louis office and one of them modified. They had conducted all of the correspondence with the St Louis office, and had taken up the question of advancement with the St. Louis office.

2. The language used by the said Roy, if admitted to have been used by a party who could bind the complainant, does not amount to a release of the defendant, Algonquin Lumber Company, from liability to ship under said contracts.

3. The Algonquin Lumber Company did not rely upon what had been said to them by Roy, but immediately took the matter up with the Gruner & Brothers head office at St. Louis by their letter of January 3, 1918, to Phillip Gruner & Brothers Lumber Co.

It is the contention of the complainant in this case that the parties to the two contracts construed the clauses in said contract relating to the time of shipment to mean that if the shipments were not complete within thirty days on the October 17th contract; and ninety days on the November 21st contract; and if shipment was prevented by reason of embargoes, car shortage or other conditions beyond their control, that defendant would ship as soon as the conditions preventing shipment were removed.

In 6 R. C. L., page 853, it is said: It is presumed that parties to a contract know best what was meant by its terms, and are the least liable to be mistaken as to its intention; that each party is alert to protect his own interest and to insist upon his own rights, and that whatever is done by the parties during the period of performance of the contract, is done under its terms as they understood them and intended it should be. Parties are far less liable to have been mistaken as to the meaning of their contract during the period while harmonious, and practical construction reflects that intention, than they are when subsequent differences have impelled them to resort to law, and one of them sees a construction at variance with the practical construction they have placed upon it of what was intended by its premises. Citing Robbins v. Kimball, 29 A. S. R. 45; Mittau v. Roddan, 6 L. R. A. (N. S.) 275; Mueller v. Northwestern University, 88 A. S. R. 194; Vincennes v. Citizens Gas Light Co., 16 L. R. A. 485, and a number of other cases.

To quote further from the text of the R. C. L. cited; It has been said that in order to render applicable the rule that contemporary construction of a contract by acts of the parties is entitled to great weight; it should appear with reasonable certainty that they were acts of both parties, done with knowledge and in view of a purpose at least consistent with that to which they are sought to be applied. In such a case, the practical interpretation by the parties themselves is entitled to great, if not controlling influence, in ascertaining their understanding of its terms." Citing Wyatt v. Larimer, etc., Irrigation Co., 36 A. S. R. 280 and a number of other cases. The supreme court of the state of Mississippi, in Spengler v. Stiles-Tull Lumber Co., 48 So. 966, lays down the rule that the contemporaneous construction placed on all instrument by the parties thereto is entitled to much weight in reaching the intent and purpose of the instrument.

As to the printed line in the letter heads upon which these contracts were drawn to the effect: "All quotations, contracts and agreements are made contingent upon accidents, strikes and other delays unavoidable or beyond our control, quotations are made subject to immediate acceptance and prior to sale." This was a line printed on the stationery of the Algonquin Lumber Co. and appeared near the top of said stationery. In the case of Fish v. Hamilton, 50 C. C. A. p. 509, a similar provision was held to apply only to the time of delivery and not to relief from delivery altogether. That a seller with such a provision in a contract was bound to deliver within a reasonable time after the termination of a strike, where a strike was in effect during the time the goods were contracted to be delivered.

So I think it is a fair construction to place upon the conduct of the parties to these contracts, that they, themselves construed the contracts to mean, that if on account of embargoes or car shortages the lumber could not be shipped within the number of days specified, that the lumber would be shipped within a reasonable time after the embargo was lifted or the the car shortage had disappeared.

In conclusion I wish to say that there are two propositions of law that control this case, either one of which should convince this court that the chancellor erred in not entering a decree in favor of the complainant, and both of which are too simple to need the citation of authority other than has already been cited. Bear in mind that time was not of the essence of these contracts. The lumber was not bought for any particular purpose or to be used at any certain time. The first proposition is, that if the time limit of the two contracts were that the lumber should be shipped within thirty and ninety days, and if not so shipped, the contracts were cancelled, then said stipulation was waived by the parties to said contracts by recognizing them to be in force after the said time, limit had expired and continuing to ship lumber under them. There is no doubt but that they did this.

The second proposition is that the parties themselves construed the provisions in the contract in accordance with the contention of complainant, as shown by their actions and correspondence. For the foregoing reasons I ask that the case be reversed and judgment entered in the supreme court for one thousand four hundred and forty-three dollars together with six per cent interest on said amount from December 30, 1918.

Neville & Stone and J. H. Currie, for appellee.

As we conceive it, there are several propositions of law involved herein which we desire to bring, briefly, to the attention of the court, which are as follows: First: What is the effect of the limitations in the contracts here sued on, and how are those limitations to be construed with reference to the subject-matter and the time named for the completion of the contracts? Second: Is the time named in the contracts for the completion of them, of the essence of the contracts? Third: The facts as to the agency of J. G. Roy, and the effect of his agreement with the Algonquin Company one of the appellees herein.

We shall discuss these propositions of law very briefly, in the order named. The limitation in these contracts, that is, that the contracts were made contingent upon strikes, accidents, or other delays unavoidable and beyond the control of the appellees, was, in our opinion, binding upon the appellant herein. We do not think that these limitations would give way as contended for by counsel for the appellant, to the printed matter in the contracts. We respectfully submit to the court that this court has held, in the case of Hardy Tynes Foundry Machine Co. v. Glen Allen, Oil Mills, 36 So. 262, that stipulations of this nature should be construed, with reference to the other parts of the contract, so as to reconcile them thereto.

Under that rule we think, under the facts of this case, if it were impossible for the appellees to have obtained cars in which to make shipment of the lumber to appellant within the time named in the contracts, that appellees are relieved from liability to the appellant for any lumber not shipped by appellees to appellant.

It is undisputed that the cars could not be obtained within the time named for the completion of the contracts. The courts have repeatedly held that a limitation such as this does not suspend but relieves from all liability altogether. We respectfully refer the court to the case of the Hull Coal & Coke Co., 51 C. C. A. 213; Jessup Paper Co. v. Piper, 133 Federal, 108, 35 Cyc. 246 and Raising Fertilizer Co. v. Barrow, 12 So. 388.

If the parties themselves made the contracts, and agreed upon the time limit for the performance of the contracts, the contracts being made for a commodity that was constantly changing in prices, we do not see how it can be contended that time was not the essence of these contracts. This question is discussed at length in the case of the Hull Coal & Coke Co. v. The Empire Milling Co., 51 C. C. A. 217.

It seems to us, under the facts in this case, that the said J. G. Roy was clearly the general agent of the appellant, and that as such he made a valid agreement with the Algonquin Lumber Company as testified to by Mr. Ward, which testimony is found on page 46 of the record.

With reference to the question of Roy's agency, we respectfully refer the court to the case of Potter v Springfield Milling Co., 75 Miss. 532. The facts in this case are much stronger than in the case just cited, as to agency, in which said case the court held that the salesman...