R. J. Menz Lumber Co. v. E. J. McNeeley & Co.

Citation58 Wash. 223,108 P. 621
CourtUnited States State Supreme Court of Washington
Decision Date02 May 1910
PartiesR. J. MENZ LUMBER CO. v. E. J. McNEELEY & CO.

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by the R. J. Menz Lumber Company against E. J. McNeeley & Co. From a judgment dismissing the complaint, plaintiff appeals. Reversed, with directions.

Shank &amp Smith, for appellant.

F. A Huffer, for respondent.

GOSE J.

The appellant, the plaintiff below, commenced this action against the respondent to recover damages for failure to deliver four car loads of shingles and mixed lumber and shingles. The case was tried to a jury, which returned a verdict for the respondent. From a judgment of dismissal entered upon the verdict, the plaintiff has appealed.

The complaint states four causes of action based upon four separate orders. In the third cause of action, which is illustrative of the others except as hereafter noted, it is alleged, in substance, that the appellant and the respondent entered into a contract of purchase and sale as evidenced by an order and the reply thereto, which, omitting immaterial parts, is as follows:

'Seattle, Wash., Jan. 17, 1907.
'E. J. McNeeley & Co., Tacoma, Wn.
'Order No. 729X. (For conditions upon which this order is accepted see other side of this sheet.)
'Cars to be consigned from R. J. Menz Lumber Co. (Always show us as shippers.)
'Bill of Lading to read: Ship to R. J. Menz Lumber Co. at Minnesota Trfr., Minn. Route: N. P. Prices: F. O. B. Mill.
'Terms: 90 per cent. advance. Settlement on receipt of consignee's report and expense bill (less usual 2 per cent. discount.) All underweights to mill 50 cent rate.
'Quantity: One (1) Car.
------------------------------------------------ Description. Price Guaranteed per M. Weight per M. ------------------------------------------------ 6-2 Plain Dimension R. C. Shingles at $2.50 160 Any sized-large preferred ------------------------------------------------

'Please acknowledge acceptance of this order on enclosed postal card, by return mail. Very Truly Yours, R. J. Menz Lumber Co., per E. B. Day.'

'Tacoma, Wash., Jan. 18, 1907. 'R. J. Menz Lumber Co., Seattle, Wash.

'Dear Sirs: Your order No. 729X has been received. We accept and enter same for shipment in accordance with the terms thereon. We anticipate making shipment on or about _____. At prices annexed, we would like to move the following stock: _____. Yours very truly, E. J. McNeeley & Company, per _____.'

The order in the first cause of action is for 50,000 described shingles, with directions to 'Fill car 6-2 Ex. * A * R. C. Shingles.' The order in the second cause of action is for 75,000 designated shingles with directions: 'Balance 6-2 extra. * A * R. C. Shgls.' And 'Small car preferred.' Shipping directions in the fourth cause of action were: 'Ship to order of Bonds Foster Lumber Company at Aurora, Nebraska. How ship: Billings care B. & M. R. When: Soon as possible. Terms: Regular f. o. b., Aurora, Nebraska. Sixty cent rate.' This cause of action was assigned to the appellant. Each of the acceptances, except on the third cause of action, was upon the respondent's stationery, which had printed thereon, above the typewritten acceptance, the name of the respondent, illustration of shingles, capacity of its mills, specialties, etc., including the words: 'Quotations subject to change without notice. Contracts made at home office only and contingent upon exigencies of transportation and accidents beyond our control.' Similar typewritten matter was upon the letter heads of the appellant. The respondent interposed three affirmative defenses to each cause of action except the third, which in substance are: (1) That it accepted the order by letter upon its letter head which contained the printed matter just quoted; that at the time of the acceptance of the order and continuing until April 5, 1907, there was a great shortage of railroad cars in the state of Washington and in the country generally for use in transporting lumber and shingles, and that cars could not be procured for such purpose except in limited numbers inadequate for the handling of the lumber and shingle business of the state and of the country generally; that by reason thereof manufacturers and sellers of such commodities were unable to procure cars, which facts were at all times known to the appellant; that between January 26 and April 5, 1907, by reason of storms, washouts, and other acts of God preventing railway companies operating in this and other lumber producing states, railroads could not furnish any cars for transporting lumber and shingles; that the car embargo could not have been foreseen; that, on account thereof, the market price of lumber and shingles appreciated. (2) That there was a general custom and a special one between the appellant and the respondent that such contracts were contingent upon the exigencies of transportation and accidents beyond the control of the parties; that when delivery of such commodities has been delayed until a reasonable time has expired in which to make delivery, without fault on the part of the seller, and where delivery would inflict a loss upon either of the parties, compliance with the contract is excused; that this custom was well known to the parties and the contract was made with reference thereto. The car embargo and the rise in the price of lumber and shingles is alleged as in the first defense. (3) That there is a particular custom in the lumber trade known to the appellant, and in giving or accepting an order the parties contracted in reference thereto; that all orders in writing are accepted contingent upon the exigencies of transportation and accidents beyond the control of the parties. The shortage of cars and the rise in the price of lumber is alleged as in the first defense. The first affirmative defense is omitted as to the third cause of action; the acceptance there being on a postcard not containing the printed matter on the respondent's letter head. The failure of respondent to deliver the material is admitted, and it seeks to excuse performance in the manner pleaded.

It now asserts, however, that it was the duty of the purchaser to furnish the cars for loading, and that, failing to do so there can be no recovery. Notwithstanding the fact that this view is inconsistent with the claim that the acceptance of the order was subject to the exigencies of transportation, we will consider it as it may arise upon a retrial of the cause. Where the contract is otherwise silent as to who shall furnish the cars, the term 'f. o. b. cars,' as applied to ordinary commercial commodities, means that the goods shall be free on board the cars--that is, loaded without expense to the purchaser, and that the seller shall procure and load them. Hurst v. Altamont Mfg. Co., 73 Kan. 422, 85 P. 551, 6 L. R. A. (N. S.) 928, 117 Am. St. Rep. 525; Vogt v. Schienebeck, 122 Wis. 491, 100 N.W. 820, 67 L. R. A. 756, 106 Am. St. Rep. 989; John O'Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N.W. 337; Elliot v. Howison, 146 Ala. 568, 40 So. 1018. In the Hurst Case, 73 Kan. 429, 85 P. 554, 6 L. R. A. (N. S.) 933 (117 Am. St. Rep. 525), it is said: 'It is our understanding that the phrase or formula 'f. o. b. cars' has by long usage and custom acquired throughout the business circles of this country a definite and specific meaning generally understood by all business people. When such phrase or formula is used in a business contract between a buyer and seller of ordinary commercial commodities, where the use of a common carrier is necessary, the parties intend thereby that the seller will at his own expense do all that may be necessary to accomplish the loading and consignment of the goods to the buyer, including the placing of cars upon which to load the commodities sold; and, when nothing appears to modify or limit this meaning, courts should enforce the contract so as to effectuate this intent. This rule is reasonable. It harmonizes with existing business conditions, and is the universal practice among business people. It is conceded that, by this phrase, the seller is bound to deliver the goods to the buyer by placing them on board the cars. How can he do this unless he secures the cars? Why say that this duty belongs to the buyer? The language of the contract is silent upon this question. By the letter of the agreement it may be said that neither party has agreed to perform this duty, but it may not be said that there was no understanding upon this subject. Without such an understanding, the contract would be incomplete and not enforceable. What the parties intended upon this subject can only be ascertained by interpretation, and to do this the situation of the parties when the contract was made, the subject-matter thereof, and all the attendant circumstances and conditions must be considered.' In the Vogt Case, discussing the meaning of the phrase (122 Wis. 499, 100 N.W. 823, 67 L. R. A. 760 ), the court said: 'Whether such meaning includes under the circumstances of this case the duty of the seller to procure the cars in place for his use in loading the merchandise, and that evidence is not permissible to show the existence of a custom which the parties contract with reference thereto, is not altogether plain, but we are constrained to hold that it is.' In the Elliot Case, 146 Ala., at page 591, 40 South., at page 1027, it is said: 'In the case at bar the seller undertook to accomplish the delivery of the things sold free on board the cars. We think it comports with reason to hold that by necessary implication he agreed to supply all means to accomplish such result--the cars upon which the shipments of piles were to be made.' The authorities cited by the respondent, holding...

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