Salisbury v. Brooks.
| Decision Date | 30 October 1917 |
| Parties | Salisbury v. Brooks. |
| Court | West Virginia Supreme Court |
A written contract whereby the owner in the opening sentence agrees to "sell" to another "all the lumber to be cut from" a certain tract of timber lands, but the subsequent clauses of which provide that the owner shall furnish a mill and manufacture the lumber and load it on cars "as sales can be made", and that the other party shall advance by monthly payment the estimated manufacturing cost, market the lumber to the best advantage, and account to the owner for the proceeds, less a stated commission to cover interest on such advancements and compensation for his services in effecting sales properly construed as a wholecreates an agency to sell, and not the relation of vendor and purchaser, (p. 234).
The rule of practical construction by acts of the parties applies only where the contract on its face is ambiguous and uncertain, and not where by its terms the instrument expresses their intention with reasonable certainty. (p. 237),
Error to Circuit Court, Webster County. Action by E. J. Salisbury against Arthur Brooks. Judgment for plaintiff, and defendant brings error.
Reversed, and judgment entered for defendant.
W. T. Talbott and Morton & Woodell, for plaintiff in error. Corley & Greene, for defendant in error.
Lynch, P resident:
On January 23, 1909, Salisbury and Brooks entered into the agreement out of which this controvery has arisen. Is it a contract of sale, or a contract of agency to sell the lumber manufactured from timber on lands owned and controlled by Salisbury in Webster county? The answer to that question virtually determines the issues between the parties. Construing it as a contract of sale, the trial court overruled the demurrer to the evidence interposed by defendant, after each party had introduced his proof before the jury, and entered judgment for plaintiff upon the conditional verdict,
The declaration, demurred to and held sufficient, contains the common counts, and a special count in assumpsit based upon the contract. No defect in the pleading is pointed out, and none is perceived. The trial had upon the usual joinder on the non-assumpsit plea, the bill of particulars filed with the declaration and specification of sets-off filed with the plea, resulted in a verdict for plaintiff in the sum of $249.86 if the law be for him, and for defendant in the sum of $150.44 if the law be for him.
The material provisions of the contract, upon the true interpretation of which a decision upon the merits of the controversy depends, are: "In consideration of one dollar in hand and other considerations, the said Salisbury hereby sells to Arthur Brooks all the lumber to be cut from a certain tract of timber owned by him", estimated "at about 3, 000, 000 feet. Said Salisbury is to cut, cure properly, and load on ear as sales can be made.
The first paragraph and some provisions of the last one, dissociated from other coordinate and equally significant provisions, may, when cursorily read and considered together, induce the belief that the parties intended the contract to create the relation of vendor and purchaser. They purport to sell lumber, for the manufacture of which from certain timber owned by one of them the other was to advance by monthly payments, without interest, the estimated sum of money to defray expenses necessary to put into deliverable condition for market the lumber with which the contract purports to deal. Evidently it was this severance of the various stipulations that led to the conclusion by which the jury was guided in its deliberations. If so, that method finds no support in any competent authority. The well recognized canons or rules of construction and interpretation of instruments require consideration and comparison of every coordinate provision of the paper whose true intent and meaning is to be ascertained. 1 Clark & Skyles on Agency 16; 1 Mechem on Agency 29.
Taking the contract by its four corners, as the authorities say we must, and looking into all of its stipulations and covenants, it seems clear that a misconception of the actual intent and purpose of the instrument led to the judgment based upon the verdict. This conclusion finds lodgment in the requirement to cut, cure and load the lumber as sales are made; to market the lumber to the best advantage, and pay to Salisbury the money received from sales, Brooks to retain either one or two dollars per thousand feet as compensation in lieu of interest on the advancements and for his services in selling the lumber. It is difficult to understand or appreciate the necessity or presence of these mutual requirements and obligations on any theory other than that of a contract of agency. Salisbury was to furnish the mill...
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