Robson v. Bohn

• Decision Date: 20 November 1880
• Citation: 7 N.W. 357,27 Minn. 333
• Parties: John Robson v. Conrad Bohn
• Court: Minnesota Supreme Court

7 N.W. 357

27 Minn. 333

John Robson v. Conrad Bohn

Supreme Court of Minnesota

November 20, 1880

This action was originally brought in the district court for Winona county, to recover, at the contract price, for lumber delivered by the plaintiff to the defendant, under the contract hereinafter set forth. After the decision of this court on a former appeal, (Robson v. Bohn, 22 Minn 410,) that plaintiff could not maintain his action on the contract, and after the cause had been remanded to the district court, the plaintiff, by leave of court, amended his complaint, alleging that on May 19, 1873, the plaintiff entered into a written contract with defendant whereby he agreed to sell and deliver to defendant 425,000 feet of lumber, consisting of 60,000 feet of common boards, 85,000 feet of clear or finishing lumber, 182,871 feet of dimension lumber, and 32,129 feet of other lumber, the kind not specified except that it was not to include finishing lumber or flooring; all the lumber to be of as good quality as was then usually sold in the city of Winona of the grades mentioned; the flooring and finishing lumber to be delivered near plaintiff's lumber-yard at Winona, and all the balance to be delivered free on board cars at Winona, and all to be delivered on or before September 1, 1873, the delivering to begin at once and to continue, at the rate of not less than 20,000 feet per week, until the whole should be delivered; in consideration whereof the defendant agreed to pay plaintiff for such lumber at the rate of $ 15.50 per thousand feet, and to give in part-payment his promissory note for $ 3,000, payable July 10, 1873, to pay $ 2,000 more in cash on August 1, 1873, and pay the balance on the full delivery of the lumber. That plaintiff at once began performing the contract, and on May 20, 1873, delivered to defendant, at his special request, at plaintiff's lumber-yard at Winona, 2,000 feet of clear or finishing lumber, and in like manner, on the day following, 1,000 feet more of the same kind; and on May 22d delivered to defendant free on board cars at Winona, 6,000 feet of roofing, and 6,000 feet of dimension lumber, all of which was duly received and retained by defendant; that plaintiff was prepared and intended to continue the delivery of lumber on the contract right along, according to its terms, but that the defendant then notified plaintiff that he was not prepared to receive the lumber, and requested plaintiff to suspend any further delivery of lumber until further notified by the defendant, and also requested that the common boards and balance of the roofing be not delivered on board the cars unless further specially so directed, but that he would send his teams for and receive the same at plaintiff's yard as he might want it, which said requests of defendant as to a change in the place and mode of delivery, and a present suspension of the delivery of lumber, were acceded to and complied with by plaintiff; and that, in compliance with the request of defendant, the further delivery of lumber upon the contract was suspended until June 7, 1873, at which time the plaintiff resumed the delivery of the lumber, and thereafter continued to deliver the same, as required by the contract as modified at defendant's request as to the mode and place of delivery, until August, 1873.

That he delivered to defendant upon the contract (at dates and in quantities and of values specified) between May 22d and August 1, 1873, 202,207 feet of lumber of the market value of $ 3,630.29, and in all respects performed the contract on his part as required by its terms as modified as aforesaid, until the defendant made default in his payments on the contract. That defendant made the $ 3,000 payment mentioned in the contract, but neglected and refused to make the $ 2,000 payment on August 1, 1873, when it became due, and has ever since neglected and refused to pay the same or any part thereof, and has made no other than the $ 3,000 payment on the contract. That after defendant's neglect and refusal to make the $ 2,000 payment when due or thereafter, and because of such neglect and refusal, the plaintiff stopped and refused further delivery upon the contract, but was prepared, ready and willing to go on and fully perform the contract on his part if the defendant would make payment as agreed. That there is a balance of $ 630.29, for which sum (as well as for the value of certain lumber not included in the contract, but sold by plaintiff to defendant and forming the basis of two other causes of action not here material,) with interest from August 1, 1873, judgment is demanded.

The defendant in his answer set forth the written contract stated in the complaint, (without the schedule annexed to it,) in words following:

"This agreement made this 19th day of May, 1873, by and between John Robson of the city of Winona, * * party of the first part and Conrad Bohn, of the same place, party of the second part, witnesseth:

"The said party of the first party covenants and agrees to and with said party of the second part to sell and deliver to said party of the second part 425,000 feet of lumber -- 392,871 feet as per schedule annexed, and the remainder of said lumber to include neither finishing lumber nor flooring all of said flooring and finishing lumber to be stacked up on the land belonging to said Bohn, a short distance east of said Robson's lumber-yard; the balance of said lumber to be delivered free on board of cars at Winona. All of said lumber to be delivered on or before the 1st of September 1873; said delivering to commence immediately, and continue at the rate of not less than 20,000 feet per week till the whole is delivered. And said party of the first part convenants that said lumber shall be good, sound, merchantable lumber, of as good quality as is usually sold in the city of Winona of the various grades mentioned in the schedule hereto attached and made part of this contract.

"And the said party of the second part covenants and agrees to deliver to said party of the first part, on the delivery of this agreement, his promissory note for $ 3,000, payable July 10, 1873, and the further sum of $ 2,000, August 1, 1873; and, on the full delivery of the said 425,000 feet of lumber, as aforesaid, to pay therefor the sum of $ 15.50 for each and every thousand feet of lumber aforesaid so delivered, less the amount of $ 5,000 above mentioned.

"And for the true and faithful performance of each and every one of the covenants and agreements above mentioned, the parties to these presents bind themselves each unto the other. In witness," etc. [Signed and sealed by both parties.]

The answer further alleges that the lumber contracted for was to be used by defendant in constructing a public building at St. Peter (the Hospital for the Insane) which defendant was under contract to erect and complete within a certain time under a heavy forfeit, as plaintiff when the contract was made well knew; denies any modification, suspension or abandonment of the written contract; alleges that on August 1, 1873, plaintiff had not furnished, by many thousand feet, the quantity of lumber then due upon the contract, and has ever since refused to make up such deficiency, and that the quality of much of the lumber furnished was inferior to that required by the contract -- especially that 6,000 feet of lumber, loaded on car and shipped by plaintiff to St. Peter without defendant's knowledge, as roofing, was not such roofing as the contract required, but was rotten lumber known as "culls;" that defendant refused to receive it, and notified plaintiff to take it away and furnish good lumber in its place, which the plaintiff refused to do; and that the same is part of the lumber claimed in the complaint to have been delivered under the contract. That on August 1st, at which time many thousand feet of lumber were past due and not delivered, the defendant requested of plaintiff the delivery of lumber under the contract, but plaintiff refused to do so; and that plaintiff, being thus in default, did on August 4th demand the $ 2,000, payable by the terms of the contract on August 1st, which the defendant was willing and ready and then offered to pay if plaintiff would perform the contract on his part; but the plaintiff wholly refused to do so, for which reason solely the defendant refused to make the $ 2,000 payment.

The place of trial having been changed to Goodhue county, the action was tried in that county by Crosby, J., without a jury. At the trial there was a conflict of evidence as to whether defendant requested plaintiff to suspend all deliveries between May 22d and June 7th, or merely deliveries on cars. In regard to defendant's refusal to make the $ 2,000 payment, it appeared that he put his refusal on the ground mainly of deficiency in quality of the lumber delivered up to that time, and would not make the payment without an assurance from plaintiff that he would deliver better lumber in the future. The plaintiff testified that his reply was "that we had a contract already, and that it was not necessary to vary it; that we had no other qualities to deliver; that the qualities would be the same that we had delivered, and that was our understanding."

Upon the matters in issue, the court found that the lumber mentioned in the complaint was delivered by plaintiff to defendant between May 20, 1873, and August 1, 1873, at the rate of fully 20,000 feet per week, except that between May 22d, and June 7th, all delivery was suspended, in consequence of a request made by defendant to plaintiff on May 21st to suspend all shipments until further notified by plaintiff that all the lumber delivered was of the quality required by the contract, except the 6,000 feet of roofing mentioned in...