Rhodes v. Holladay-Klotz Land & Lumber Co.

• Decision Date: 01 March 1904
• Citation: 79 S.W. 1145,105 Mo. App. 279
• Court: Missouri Court of Appeals
• Parties: RHODES v. HOLLADAY-KLOTZ LAND & LUMBER CO.

79 S.W. 1145

105 Mo. App. 279

RHODES v. HOLLADAY-KLOTZ LAND & LUMBER CO.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

LOGS AND LOGGING—CONTRACTS—CONSTRUCTION —PLEADING—EVIDENCE—INSTRUCTIONS —MEASURE OF DAMAGES.

1. In an action for breach of a contract by which defendant agreed to furnish logs to plaintiff's sawmill and dispose of the lumber, defendant alleged that its failure to furnish logs was caused by its inability to sell all the lumber, and that a large amount of lumber was on hand, which was unsalable because of defects in the manufacture, and plaintiff replied that the defects resulted from the fact that the logs furnished by defendant were rotten. Held, that evidence to show this was properly admitted, though the petition did not allege that the logs were unsound.

2. Defendant contracted to furnish logs to plaintiff's sawmill and sell the lumber, agreeing to "log the mill to its capacity, limited only by the amount of lumber" defendant should "be able to sell at satisfactory prices." Held, that defendant could not arbitrarily determine what quality of logs should be supplied, or what prices were satisfactory, but that it was required to supply logs which could be manufactured into salable lumber, and to make reasonable efforts to put the lumber on the market at a price which would yield a reasonable profit.

3. Plaintiff was required to saw the lumber in a workmanlike manner, in dimensions required by defendant.

4. Defendant contracted to furnish logs to plaintiff's sawmill and to sell the lumber, agreeing to "log the mill to its capacity, limited only by the amount of lumber" defendant should "be able to sell." Plaintiff sued, alleging merely a failure to furnish sufficient logs, and defendant answered that the failure to furnish logs was caused by its inability to sell the lumber because of defects in its manufacture. Plaintiff replied that the defects resulted from the fact that the logs furnished were rotten. Held that, under Rev. St. 1899, § 607, providing that the reply shall contain new matter constituting a defense to the new matter set up in the answer, the reply could not add to the petition so as to authorize a recovery if failure to sell the lumber was caused by the furnishing of defective logs.

5. In an action for breach of contract, an instruction to assess plaintiff's damage at such sum as the jury might consider he had sustained was erroneous, because leaving the measure of damage to the speculation of the jury.

6. The measure of damage for breach of a contract to furnish sufficient logs to supply a sawmill was the loss of profits which would have been realized if logs had been supplied according to contract.

Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.

Action by Charles M. Rhodes against the Holladay-Klotz Land & Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed.

Green & Raney, for appellant. Smith & Munger, for respondent.

Statement.

BLAND, P. J.

The suit is on the following contract and modification thereof:

"This agreement, made and entered into this the 15th day of July, 1899, by and between the Holladay-Klotz Land and Lumber Company, of the county of Wayne and state of Missouri, party of the first part, and Charles M. Rhodes, of the county of Wayne and state of Missouri, party of the second part.

"Witnesseth, that the said party of the first part for and in consideration of the stipulations, agreements and promises of the party of the second part, hereinafter set forth, agrees to put in and maintain at its own expense the necessary railroad sidetracks and switches to the sawmill proposed to be erected by party of the second part, to be located about one mile east of Greenville, on the land of Finis Stephens, said party of the second part to furnish right of way for same; the said party of the first part further agrees to furnish and supply oak saw logs, delivered at skidway at said mill, in numbers to be limited by the reasonable convenience of the said party of the first part, and make such deliveries by the sales of such oak lumber that the said party of the first part may be able to make from time to time. It being understood that the said party of the first part will endeavor to supply logs sufficient to enable said sawmill of the party of the second part to run all the time and cut such lumber as said party of the first part can sell each month; said party of the first part agrees to log said mill to its capacity to cut, limited only by the amount of lumber said party of the first part shall be able to sell at satisfactory prices.

"Said party of the first part agrees to pay said party of the second part $3 per thousand feet, log scale, for sawing and loading said lumber at said sawmill. All lumber accumulated in sawing, that does not apply on orders, to be stacked on yard until ordered out, then to be loaded without cost to party of the first part. All slabs, edgings and waste material, except such as may be required for fuel to operate said mill, shall be property of party of the second part, and party of first part hereby agrees to cut slabs, edgings and waste material into suitable lengths for stove wood, to pile same in ranks in places accessible to teams, or put on cars direct from the mill, as required by party of the first part, without cost to said party of the first part; provided, however, that if said slabs accumulate in greater quantities than desired or can be used by said party of the first part, then said party of the second part to take them and deduct twenty-five (25) cents per M. from price for sawing.

"The said party of the second part agrees to cut at his said sawmill all logs supplied by the said party of the first part, as aforesaid, into such lumber as required by the party of the first part on orders furnished, to keep a competent man in charge of his said sawmill at all times, and to use due care in sawing all logs to the best advantage, and to saw lumber smooth and even; to classify lumber as to grades and sizes; to load the lumber on cars or put it in stacks in workmanlike manner as said party of the first part may direct; to furnish sufficient yard to pile the lumber not immediately shipped; to limit the cut of said mill to the orders and timber of said party of the first part, and to load lumber from stacks to cars as it can be applied on orders.

"The said party of the first part further agrees to advance to the said party of the second part 75 per cent. of the amount earned, as logs are sawed into lumber, the same to be paid in goods and repair work, the balance due to be payable at the end of each month, the same to be ascertained and settled as may be agreed upon by the parties later. Should there be any material decrease in the price or market value of oak lumber, party of the second part agrees to reduce his price so as to stand his proportion of such decrease or loss. This contract to run two years, unless otherwise mutually agreed.

"In testimony whereof, the said parties to these presents have hereunto and also to one copy set their respective hands and seals, at Greenville, Missouri, on the date first above written.

                     "Holladay-Klotz Land & Lumber Co
                     "Per C. C. Rainwater, Pres't.  [Seal.]
                               "Chas. M. Rhodes.    [Seal.]
                

"The within agreement is hereby amended by mutual consent of both parties as follows:

"In consideration of party of the second part agreeing to haul all wood which he cuts from slabs and waste accumulated in sawing lumber, and piling same along the line of the W. G. & St. L. R. R. on right of way of same, at convenient places to be designated by party of the first part: Party of the first part agrees to furnish to party of the second part necessary cars on their side track, at his mill for the purpose of loading all lumber on said cars as it is being cut by party of the second part, thereby releasing said party of the second part from that part of his obligation requiring him to pile said lumber on yards, as stated within agreement."

After stating preliminary matters, the petition is as follows:

"Plaintiff states that he has duly and faithfully performed all the conditions of said contract on his part to be performed, and has at all times been ready and able to cut all the logs on said mill when furnished him by defendant; but that defendant has failed to perform its part of said agreement, in that it has failed and refused to supply plaintiff with saw logs sufficient to keep said mill running all of the time, and has thereby caused said mill to be idle a great portion of said time, to wit, for an aggregate period of two hundred and seventy-five days, to plaintiff's damage in the sum of four thousand four hundred and forty-nine dollars and fifty cents. Wherefore, the premises considered, plaintiff prays judgment against defendant for the said sum of four thousand four hundred and forty-nine dollars and fifty cents.

"Plaintiff, for another and further cause of action herein, states that on the ____ day of May, 1900, he was employed by the defendant to unload the saw logs from the defendant's cars at plaintiff's mill; that during the time intervening between said date and the first day of January, 1901, plaintiff unloaded for defendant as aforesaid four hundred and twenty-three cars; that his services in unloading said cars are reasonably worth twenty cents per car; that, though often requester to pay amount, defendant has failed and refused, and still fails and refuses, to pay the same. Wherefore, plaintiff prays for judgment against defendant in the sum of twenty cents per car, aggregating the sum of eighty-four dollars and sixty cents, and the costs of said suit."

After a general denial, except as to matters expressly admitted, the answer is as follows:

"Further answering said petition, defendant says that on the 15th day of July, 1899, it entered into a written contract with the plaintiff, by which it was to...