Ross-Saskatoon Lumber Co. v. Turner, Dennis & Lowry L. Co.

• Decision Date: 11 June 1923
• Docket Number: No. 14731.,14731.
• Citation: 253 S.W. 119
• Parties: ROSS-SASKATOON LUMBER CO., Limited, v. TURNER, DENNIS & LOWRY LUMBER CO.
• Court: Missouri Court of Appeals

253 S.W. 119

ROSS-SASKATOON LUMBER CO., Limited, v. TURNER, DENNIS & LOWRY LUMBER CO.

No. 14731.

Kansas City Court of Appeals. Missouri.

June 11, 1923.

Rehearing Denied July 2, 1923.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by the Ross-Saskatoon Lumber Company, Limited, against the Turner, Dennis & Lowry Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Turpin & Behrendt, of Kansas City, for appellant.

John N. Davis, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff is a manufacturer and jobber of lumber in British Columbia and defendant is a wholesale dealer in Kansas City. Plaintiff brought suit, alleging that "between the 23d day of January, 1920, and the 10th day of March, of the same year, plaintiff sold and delivered lumber and lath of various grades and dimensions at agreed prices totaling $8,140.74"; that the lumber was sold to defendant at its special instance and request, and it agreed to pay therefor in 30 days; that the whole of said lumber was delivered to defendant and the purchase price of $8,140.74 was due and demand therefor was made, but defendant refused to pay same, except that, between January 23 and June 14, 1920, defendant paid certain amounts aggregating $3,797.41, leaving a balance due of $4,343.33, for which judgment was prayed. The petition further stated that "an itemized statement showing all of said shipments with grade and quality of lumber and lath together with the agreed prices thereof" with all credits thereon would fully appear from an itemized statement which was thereto attached marked "Exhibit A." There was no controversy over anything except the last five items, of one car each, which, in the account as originally sued on, were stated as follows:

                March 4, 1920. To car 27350 pine shop 17,218
                 bor. ft. .................................. $1,105 32
                March 5, 1920. To car 17343 pine shop 16,985
                 bor. ft. ..................................  1,098 91
                March 6, 1920. To car 4746 pine shop 16,989
                 bor. ft. ..................................  1,084 26
                March 5, 1920. To car 267130 Western pine
                 shop 15,676 bor. ft......................    1,025 49
                March 10, 1920. To car 270604 pine shop
                 14,190 bor. ft.........................        901 69
                

In its answer defendant set up that on March 4, 1920, by a written order of that date, it purchased ten cars of "Western pine rough shop lumber of grades 1, 2, and 3, to run a high per cent. of No. 1"; that the term "shop lumber" in trade parlance meant and included only dry lumber, and defendant not only understood it was purchasing dry lumber, but in its written order required all stock to be dry; that before any cars were received defendant learned that plaintiff had no dry shop lumber and no lumber that met defendant's requirements, and learned that plaintiff was going to fill said order with green lumber and had in transit green lumber which plaintiff was proposing to deliver in the filling of defendant's said order; that plaintiff, while bound to deliver dry shop lumber at the price agreed upon, represented that the lumber in transit had been "on sticks," that is, piled with sticks between so as to allow a circulation of air about each board, for 30 days, and that if defendant would accept said lumber plaintiff would assume all risk of the lumber becoming "stained," that being a frequent result of shipping green lumber; that, relying on said representations, defendant agreed to accept said lumber at the same price on condition that said lumber should be free from stain; that it was understood between the parties that defendant had bought the lumber for resale, and that, relying upon plaintiff's representations, defendant resold said lumber then in transit to a customer in Museatine, Iowa, on the same condition, namely, that It had been "on sticks" for 30 days and would be free from stain; that thereafter four cars, being cars Nos. 4746, 17343, 267130, and 270604, were delivered to and unloaded by defendant's said customer, but the lumber was found to be green and badly stained and had not been "on sticks" for 30 days, so that said customer refused to take the same and defendant notified plaintiff of these facts, and defendant refused to accept or pay for said lumber and offered, and now still offers, to return it or make such disposition of it as plaintiff might direct.

The answer then pleaded want of consideration for the agreement to accept the green lumber in place of dry lumber; that defendant had not accepted any of said green lumber or paid anything as earnest money to bind the bargain or signed any memorandum in' writing to purchase same; and that, even if there had been a consideration for such conditional acceptance, defendant was still justified in rejecting said lumber and in refusing to pay for same, because it was green and had not been on sticks for 30 days and was not free from stain. The answer then set up a counterclaim for the freight and demurrage on said lumber paid by its Muscatine, Iowa, customer and for which defendant became liable and had paid to said customer.

Plaintiff, in an amended reply, denied generally, and then set up that the order for tan cars was given and on the 4th of March was confirmed in writing by defendant, but the confirmation did not reach plaintiff until about March 12, 1920, and on that date a dispute arose between plaintiff's sales manager, Davis, and defendant, in defendant's office in Kansas City, as to whether the order of "pine shop" called for "green or dry shop"; that at that time plaintiff had already loaded and put in transit the five cars set out in the petition as part of the account sued on, which was to apply on said order; that said dispute arose when defendant was advised by Davis that the five cars then loaded and in transit were of "green pine shop," and same had been sold to defendant upon said order "at a stated price," and that, said lumber being green, there were liable to be excessive freight charges on account of weight and the lumber was also liable to be stained; that it was then and there agreed between defendant and plaintiff, through its sales manager, Davis, that in consideration of the cancellation of the remainder of said order of ten cars defendant would take the five cars in transit, being the five set out in plaintiff's petition and for which the suit is brought, and defendant would pay the invoice price for said five cars in transit.

After the filing of this reply and at the opening of the trial the defendant moved for judgment on the pleadings, on the ground that the petition based the cause of action on a contract to buy certain lumber, and then when the answer was filed claiming that lumber different from that called for was furnished, the reply showed on its face that the contract mentioned in the petition was abandoned and another separate and distinct contract was made, and recovery is now sought upon that. Whereupon plaintiff, over the objections of defendant, sought and obtained leave to amend the account attached to the petition by inserting the word "green" before the words "pine shop" and "Western pine shop" in the items hereinbefore set out, and did amend the same in that particular. The motion for judgment on the pleadings was then overruled.

Defendant then objected to the introduction of any evidence under the petition as to the four ears of shop lumber on the ground that on the face of the petition and exhibit it appears that they were purchased prior to March 12, 1920, under an agreement then in existence, and plaintiff's reply admits that the contract in existence prior to March 12, 1920, was by mutual consent abrogated, and the contract referred to in the reply was not pleaded in the petition. The court inquired whether the original contract was canceled or merely modified. Counsel for plaintiff said, "There was a modification that took place," but that the evidence would disclose there were three contracts or orders, and that plaintiff's cause of action, being a suit on account, was not changed in the least. Defendant again objected on the ground that the petition did not plead the reformed or substituted contract of March 12, 1920. The objections were overruled.

Thereupon the case was tried, resulting in a verdict for plaintiff on its petition for $4,-343.32 with interest at 6 per cent. from October 20. 1920, making a total of $4,674.86, and a verdict for defendant upon its counterclaim for $549.84. (Plaintiff's instruction 2 authorized, the allowance of interest "at 6 per cent. from the date of filing of this suit, October 20, 1920." The suit, however, was not filed until October 22, 1920.) The defendant appealed.

We are at a loss to understand how the jury, after finding for plaintiff on its petition, could nevertheless also find for defendant on its counterclaim, for, as we understand the record in the somewhat vague and. unsatisfactory way in which it is presented, unless defendant was justified in refusing to accept or pay for the lumber it could have no claim on plaintiff for the freight and demurrage it was compelled to pay its Muscatine customer. This, however, is by the way, since no point seems to be made on it, and we assume there exists an explanation of this seeming inconsistency somewhere.

It appears that McLaughlin was a lumber broker In Kansas City, and plaintiff, in a telegram of February 23, 1920, authorized him to "offer subject to prior sale * * * up to 10 cars * * * green Western pine shop f. o. b. mill No. 1, 70, No. 2, 60, No. 3, 55, will" run high percentage No. 1," etc. (Italics ours.) Pursuant to this telegram, McLaughlin called on defendant's president, and the latter orally agreed to take ten cars. McLaughlin claims he showed this telegram to the president, but this the defendant denies. At any rate, upon obtaining said oral order, McLaughlin telegraphed plaintiff to ship defendan...