Studdard v. Carter

• Decision Date: 16 June 1919
• Docket Number: 20721
• Citation: 120 Miss. 246,82 So. 70
• Court: Mississippi Supreme Court
• Parties: STUDDARD ET AL. v. CARTER

82 So. 70

120 Miss. 246

STUDDARD ET AL. v. CARTER

No. 20721

Supreme Court of Mississippi

June 16, 1919

Division B

1. LOGS AND LOGGING. Contract for sawing logs. Election to treat contract as breached.

Where a contract by which plaintiff was to saw logs at a stated price for defendant provided, that in case the market should become dull, so that defendants could not dispose of their lumber without loss, plaintiff should close down his mill. In such case plaintiff could elect to treat the contract as breached where defendants failed to supply logs for nearly a year after the lumber could have been sold at a profit, and the bringing of suit was such an election.

2. LOGS AND LOGGING. Breach of contract. Damages. Amount.

Under the evidence as set out in this case which was an action for breach of contract to furnish logs, which were to be sawed by plaintiff for defendants at a certain price per thousand feet, the court held that the jury was warranted in finding a larger verdict than forty-five hundred dollars.

3 DAMAGES. Speculative damages.

Evidence is not speculative which shows the cost of each item with reasonable certainty as the law only requires reasonable certainty and not mathematical certainty.

4 DAMAGES. Duty to mitigate. Who may invoke the rule.

Where the contract obligated plaintiff, the owner of a saw-mill not to buy timber from others without defendant's consent during the time he was employed to cut timber for them, and defendants breached the contract by failing to furnish timber, they are not in a position to invoke the rule that the plaintiff should be charged with such sums as he could have earned by taking other contracts; where defendants did not notify plaintiff that they were willing for him to contract for timber with others.

5. APPEAL AND ERROR. Verdict approved by chancellor. Conclusiveness.

While the chancellor has the power to set aside a jury verdict in cases where a jury trial is not granted by statutes and decide it in accordance with his own conception of the truth of the facts in issue, he will ordinarily not do so, unless in his judgment the jury's finding is manifestly wrong and where a jury's verdict is approved by the chancellor, by rendering judgment thereon, the supreme court, on appeal, will not reverse for misdirection of the jury, unless it could say that the facts did not support the verdict, or unless the court was convinced from the whole record that the chancellor misconceived the law applicable to the case.

HON. E. N. THOMAS, Chancellor.

APPEAL from the chancery court of Warren county, HON. E. N. THOMAS, Chancellor.

Action by M. S. Carter against John R. Studdard and others. From a judgment for plaintiff, defendants appeal.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

J. C. Bryson and Holmes & Holmes, for appellants.

Dabney & Dabney, for appellee.

OPINION

ETHRIDGE, J.

This is the second appeal in this case. The first case is reported in 118 Miss. 345, 79 So. 225, where the contract involved is set out in full.

The contract may be briefly summarized here by stating that appellee, Carter, and appellants, Studdard and White, entered into a contract reciting that Studdard and White were the owners of certain timber situated in Warren county, Mississippi, and that the appellee was the owner of a sawmill located at the time of the making of the contract in Fulton, Tenn., and that appellee agreed to move his mill to Mississippi at his own expense, making two sets upon the land upon which the timber was growing. The appellants agreed to deliver to the appellee logs on the yard skidway at their expense, and the appellee agreed to saw into lumber the logs from twelve inches in diameter and up, manufacturing the same into the best widths and standard thicknesses as directed by appellants. For the cutting of the timber and lumber the appellants agreed to pay appellee at the rate of five dollars per thousand feet for oak, poplar, cottonwood, and lynn, and five dollars and fifty cents per thousand feet for hickory, but no lumber under No. 2 common to be paid for except as thereinafter provided. Settlements were to be made for the cutting on an estimate of the amount of lumber cut and stacked at the end of every two weeks, less five per cent., and the final settlement for the manufacture of the lumber to be based on, and made from, the sale of the lumber, after deducting the cost of manufacture, selling, and loading on cars, collection for the lumber, and adding to this cost stumpage value at five dollars per thousand feet for the oak and poplar and six dollars for the hickory lumber, for all grades except No. 2 common, which should be charged for, stumpage value, at the rate of two dollars per thousand feet; the cottonwood and lynn at three dollars and fifty cents per thousand for all grades except No. 2 common, which should be charged for at the rate of two dollars per thousand feet, stumpage value, which charges were to be retained by the said appellants; and from the amounts received from the sale of the lumber, over and above all expenses, the appellants were to have two-thirds and the appellee one-third; said one-third to be for services rendered by appellee in the scaling of logs, loading cars, measuring lumber, and looking after the interest of the appellants in the most profitable manner. The appellee was to furnish sticks and foundations and to stack the lumber at a price not to exceed fifty cents per thousand; and to keep the lumber cleaned up from the yard and put into stacks promptly, so it would not be damaged from the weather or being in bulk in the yard; and to make weekly reports by mail giving approximately the amount, kinds, and grades of lumber; and to look after the scaling, cutting, and loading and measurements of lumber, and to keep account of the amount each man hauled. The appellee further agreed to saw any lumber from any additional timber the appellants might purchase from time to time at the same prices and conditions as on the tract here involved. Clause 14 of the contract then provided:

"The said second party (appellee) agrees not to negotiate for or to purchase from any one any timber, either standing or in logs, from parties during the time he is employed by the said first parties (appellants) to cut the timber from these one thousand, three hundred and seventy acres, or any additional timber the said first parties may purchase on adjoining land. It is understood that, where the timber is offered to the said second party by owners, he is first to submit such offers to the said first parties, and if purchase is made by the said second party it must be made by the direction of the said first party."

It was further agreed that if for any reason the first parties shall fail to keep enough logs on skidways or yard, and the second party was compelled to close down his mill for any reasonable time, in that event the second party will not be entitled to pay for the loss of time; and it was further agreed that in case the lumber market "should become dull and the said first parties could not dispose of their lumber without loss, the said second party shall close down his mill without any expense to the said first parties until such conditions shall have improved, to enable the said first parties to sell their lumber without a loss."

The second party, further, was to sell to the local trade for cash such lumber as mill culls at the best prices obtainable. It was further agreed that in the event the said second party should die or become disabled before completing this contract, the said first party should have the right to take charge of and operate the mill outfit, paying to the estate of the said second party one dollar per thousand feet rental for all lumber cut on his mill.

The contract...