San Miguel Consolidated Gold Mining Co. v. Stubbs

• Decision Date: 01 April 1907
• Citation: 39 Colo. 359,90 P. 842
• Parties: SAN MIGUEL CONSOLIDATED GOLD MINING CO. v. STUBBS et al.
• Court: Colorado Supreme Court

90 P. 842

39 Colo. 359

SAN MIGUEL CONSOLIDATED GOLD MINING CO. v. STUBBS et al.

Supreme Court of Colorado

April 1, 1907

Error to District Court, San Miguel County; Theron Stevens, Judge.

Action by F. W. Stubbs and another, copartners, against the San Miguel Consolidated Gold Mining Company for breach of contract. From a judgment for plaintiffs, defendant brings error. Reversed and remanded.

Story & Story, L. W. Allen, and Gondy & Twitchell for plaintiff in error.

Hogg &amp Watson and Reese McCloskey, for defendants in error.

BAILEY J.

On the 25th of July, 1900, defendants in error, plaintiffs below entered into a contract in writing with the plaintiff in error, defendant below, whereby the plaintiffs agreed to furnish defendant with certain lumber for the construction of a flume under certain terms and conditions set forth in the memorandum of agreement. By the contract plaintiffs agreed to furnish defendant with 6,000 lineal feet of waterway in accordance with the plans and specifications attached to the contract. This waterway was 'to be equal in quality to a certain sample lot of said material furnished by said first parties to said second party in the fall of 1899 and now in use immediately below said second party's powerhouse at Ames, Colorado.' Provision was then made in the contract for the furnishing of certain other lineal feet of waterway as above described. This is followed by the clause: 'All of the above-described waterway to be constructed of the heart of yellow pine from two inch plank not less than 1 5/8 inches thick and dressed on the inside.' The contract also provides for the furnishing of sills, posts, caps, heading, and covering for the waterway as required. There is a clause in the contract which provides that time is the essence of the contract, and that the liquidated damages for failing to deliver the material within the time specified should be $100 for each and every day's delay to so deliver said material. The plaintiffs furnished a portion of the lumber necessary to make the waterway. This lumber, however, was rejected by defendant, for the reason, as contended by it, that it was not heart of yellow pipe; the defendant contending that lumber made of the heart of yellow pine should contain none of that portion of the wood called 'sap,' but should be exclusively 'heart,' claiming that the heart of yellow pine when used for flume purposes would last for 20 years, while that portion of the board which contained sap, being more susceptible to decay, would last but a few years, and that, when the sap became decayed, it would necessarily require the repair of the flume. About the 15th of September, 1900, there was a conference between certain members and employés of defendant company, one of the plaintiffs and a representative of plaintiffs, at which conference it was to be determined what should be done in the matter; defendant refusing to accept lumber which was not of heart of yellow pine, and plaintiffs confessing their inability to furnish lumber of a different character than that which had been supplied. The result of this conference was that defendant agreed to pay to plaintiffs $8 per 1,000 feet, board measure, for the lumber which they had furnished, and use it as a covering for the flume, and to obtain redwood from California out of which to construct the flume itself. Plaintiffs continued to furnish the other lumber mentioned in the complaint. Defendant obtained the redwood from California, and constructed its flume. The flume as constructed cost about 15 cents more per lineal foot than it would have cost had it been made of the lumber which plaintiffs agreed to furnish. The defendant was unable to obtain the lumber from California within the time prescribed in the contract with the plaintiffs. As a consequence defendant was unable to complete the flume before the ground became frozen and the storms of winter commenced. Defendant failed to pay plaintiffs for all of the lumber which they furnished, and plaintiffs brought suit to recover the value. Defendant filed a counterclaim, setting up the contract, alleging its violation, and asking for damages because of the increased cost of the lumber obtained from California and the delay in the construction of the flume. The plaintiffs recovered judgment, and defendant brought the matter to the Court of Appeals upon writ of error.

While plaintiff in error has made many assignments of error, we will discuss but a few of them, for the reason that, inasmuch as there must be a new trial of this matter, the questions raised by the other assignments may not again arise.

The defendant offered to prove the conversations leading up to the making of the contract; that plaintiffs were informed of the purposes for which the lumber was desired, and that at that time there was some controversy between the parties as to whether or not the waterway should be made of heart of yellow pine; that plaintiffs desired to have the word 'heart' stricken from the contract, but that defendant insisted upon its remaining. This testimony was excluded by the court upon the ground that the contract spoke for itself. Upon rebuttal, plaintiffs were permitted to prove, over the objection of defendant, that the lumber for the waterway furnished by plaintiffs was as good as the sample theretofore furnished. and mentioned in the contract and that that ...