Salmon v. Helena Box Co.
| Decision Date | 20 November 1907 |
| Docket Number | 2,572. |
| Citation | 158 F. 300 |
| Parties | SALMON et al. v. HELENA BOX CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Morris M. Cohn and Charles J. McDermott, for plaintiff in error.
John I Moore, U. M. Rose, W. E. Hemingway, G. B. Rose, D. H Cantrell, and J. F. Loughborough, for defendant in error.
Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.
This case has been here before. 147 F. 408, 77 C.C.A. 586. To the opinion then rendered reference is made for the terms of the contract in question and other facts essential to a full understanding of the case. For the present purposes it needs only be stated that the box company sued Salmon and others on three counts: (1) For damages for failure to accept lumber according to the requirements of a contract dated April 28, 1903, whereby defendants purchased and agreed to take from plaintiff 1,000,000 feet of lumber; (2) for damages in the sum of $14,000 for failure to accept lumber according to the requirements of a contract dated January 14, 1904 whereby defendants purchased and agreed to take from plaintiff 5,000,000 feet of lumber; (3) for money due and owing to plaintiff for lumber actually accepted by defendants amounting to $2,187.77. The case was tried, resulted in a judgment in favor of plaintiff for $8,603.74, was brought here for review, reversed and remanded, tried a second time with similar result as before, and is now brought here by writ of error for another review. At the second trial plaintiff dismissed as to the first count, agreed with the defendants upon the amount due on the third, and litigated the second only. The defense consisted of a denial that defendants had failed to accept lumber according to the contract, and an affirmative plea that plaintiff first broke the contract by refusing to deliver lumber as required, and that defendants were damaged thereby in the sum of $10,000, which they sought to recover by way of counterclaim. The contract in question was for the purchase by defendants from plaintiff of specified quantities and kinds of lumber at prices fixed for each kind, and contained a stipulation that deliveries should be made from time to time according to shipping instructions to be given by the vendees.
Whatever may have been the evidence on the main issue, as to which party first broke the contract, there was no substantial evidence showing that defendants sustained any loss by reason of plaintiff's assumed failure to make deliveries of lumber. The market value became lower instead of higher. Moreover, the finding of the jury that plaintiff was damaged by the failure of defendants to accept the lumber is inconsistent with the claim that the defendants were damaged by plaintiff's failure to deliver. Because of the failure to show that defendants would have suffered some loss if they had been required to go into the market and purchase lumber, wrongfully withheld by plaintiff, the trial court instructed the jury that defendants could not recover on their counterclaim. In this there was obviously no error.
The only issue of fact left for consideration was whether defendants broke the contract of 1904 by failing to give shipping instructions as required, or whether plaintiff broke it by failing to deliver lumber as ordered by defendants. In other words, the only issue left was, which party, if either, first made a breach of the contract. Most of the assignments of error relate to the ruling of the court on the admission of evidence, and these will first be considered. Defendants offered testimony tending to show delays by plaintiff in filling orders for lumber made under the contract of April, 1903. Plaintiff objected to that evidence on the ground that it had dismissed the cause of action based on that contract, and that evidence showing how plaintiff failed to perform it could have no bearing on the issues in question with respect to the separate contract of January, 1904. This objection was sustained. The contract of 1904 was clear and explicit, without ambiguity or uncertainty with respect to the mutual obligations of the parties. That was settled on the former appeal. Each of the two contracts had distinct and separate subjects-matter, and the attempt to tack the contract of 1904 upon that of 1903 as one of a series of transactions initiated in 1903, and to subject the former to the infirmities of the latter or to any equitable or legal defense growing out of it, was unwarranted. The trial judge so ruled, and there was no error in doing so. This conclusion eliminates many of the questions brought to our attention by the assignment of errors, and renders unnecessary any particular reference to them.
Defendants contend that the trial court erred in permitting the plaintiff's witness to testify concerning the meaning of the words employed in the contract '10' and up' when used in the lumber trade. The order as made by defendants and accepted by plaintiff was in part as follows 'You may enter our order for the following cottonwood lumber * * * 1,500,000 1', 10' and up, 1s and 2s,' etc. These figures and words are obviously abbreviations and susceptible of explanation by persons familiar with the business in connection with which they were employed. There was no error in permitting the explanation. The testimony was material in the light of the respective claims of the parties. The issue before the jury was whether the defendants wrongfully refused to give shipping instructions for the lumber, or whether plaintiff wrongfully refused to deliver lumber after such instructions had been given by defendants. The plaintiff claims that defendant ordered special widths not justified by the contract, of 14 to 15 and 16 to 18 inches in width, and insisted that orders should be filled with those widths exclusively, irrespective of the widths prescribed by contract, namely, 10 inches or above; that defendants had ordered lumber not according to the requirments of the contract, and irrespective of the latitude permitted them by the contract, so as to apparently put plaintiff in default if it failed to fill such orders. Plaintiff admitted its liability to deliver lumber within the range of widths prescribed by the contract according to shipping instructions to be given by the defendants, and, so far as the proof shows, was always ready and willing to do so; but denied that defendants could limit that range; and claimed that their orders making such limitation constituted unwarranted and substantial departures from the contract. It was in view of these claims that the court permitted plaintiff's witnesses, over defendants' objection and exception, to testify concerning the practice of the...
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