Thayer Export Lumber Co. v. Naylor

• Decision Date: 06 November 1911
• Docket Number: 15,036
• Court: Mississippi Supreme Court
• Parties: THAYER EXPORT LUMBER CO. v. S. E. NAYLOR

57 So. 227

100 Miss. 841

THAYER EXPORT LUMBER CO. v. S. E. NAYLOR

No. 15,036

Supreme Court of Mississippi

November 6, 1911

APPEAL from the circuit court of Harrison county. HON. T. H BARRETT, Judge.

Suit by S. E. Naylor against the Thayer Export Lumber Company. From a judgment in favor of plaintiff, defendant appeals.

On October 17, 1906, the appellant entered into a contract with the appellee to buy five hundred thousand feet of lumber of the classification known to the trade as "Rio deals;" the specifications and prices being shown in the contract. The contract provided for delivery not later than December 15, 1906. On November 27th the appellee delivered to the appellant one hundred and forty-eight thousand and sixty feet on the contract, for which he was paid three thousand dollars on account; the number of feet not being definitely ascertained at the time of delivery. This was all the lumber of the kind specified that appellant had on hand for delivery at that time. No more lumber was delivered prior to December 15, 1906; but the appellee contends that an extension was granted until "late in January or early in February 1907," which was contradicted by the appellant. In January a cargo of wrecked lumber was sold at auction and purchased by the appellee, who afterwards, on April 23, 1907 tendered lumber from the wrecked cargo to appellant in fulfillment of the contract, which appellant declined, after examining same. Appellant was anxious to buy lumber classed as Rio deals, but declined lumber from this wrecked cargo because of its water-soaked and stained condition. On May 22 1907, appellant sent appellee a statement of its account, accompanying same with a check for three hundred and ninety-seven dollars and twenty-three cents, marked on its face, "Bal. a/c to date." The appellee thereafter claimed that appellant had breached the contract in refusing to accept lumber from the wrecked vessel, and brought suit for the difference between the price at the time the lumber was tendered to appellant and the time the lumber was sold by appellee, in September, 1907. From a judgment for appellee, the appellant prosecutes this appeal.

There are two errors relied upon for reversal: First, that the court erred in permitting the appellee to testify as to what the words "Bal. a/c to date" on the face of the check meant, and in refusing to permit appellant's witness to testify as to his understanding of the meaning of these words on the check. The next objection urged by the appellant is the granting of instruction No. 2 for the appellee, plaintiff below, which is as follows: "The court instructs the jury, for the plaintiff, S. E. Naylor, that if they believe from the evidence that the contract entered into between plaintiff and defendant was extended from the time of the delivery of the lumber mentioned in said contract, and if they further believe from the evidence that the plaintiff was ready, willing, and able all during said extended period of time to fulfill and carry out said contract and deliver the lumber called for therein in accordance with the terms of said contract, and if the jury further believe from the evidence that plaintiff sold lumber which defendant refused to receive, had to sell the lumber under said contract, for defendant's account, at a lower price than the price which defendant agreed to pay plaintiff for it, on account of defendant's refusal to receive and pay for said lumber, then the jury will find for the plaintiff in a sum equal to the difference between the contract price, which defendant agreed to pay for said lumber, and the price that plaintiff sold said lumber for, as they may believe from the evidence."

Judgment reversed and remanded.

May & Sanders, for appellant.

Surely if the appellee had the right to testify what was meant or intended by the settlement and thereby defeat the plea of payment or accord and satisfaction, it was error for the court to deny to the appellant the same privilege. This right was denied to the appellant and for this we insist that the cause should be reversed.

If it should be contended, with reference to such testimony, that the testimony of the appellee was inadmissible, the appellant should nevertheless have been permitted to explain away the testimony of the appellee. The true rule in such cases in this: "Prior introduction of inadmissible evidence estops the party offering it from subsequently objecting to the admission of similar evidence on the part of his opponent." 1 Wigmore on Evidence, sec. 15, page 43.

The transaction was either open to explanation by parol evidence or it was conclusive. If it was open to explanation, it was error on the part of the court to permit the appellee to explain and to deny to the appellant the same right. If it was not open to explanation, then the acceptance of the check was a complete settlement of the controversy and a bar to the appellee's right of action and the appellant was entitled to peremptory instruction.

Upon either horn of the dilemma the trial court is impaled because the appellant was denied its legal rights.

Moreover the instruction No. 2 given for the appellee does not contain a correct announcement of the law. We direct the court's attention especially to that part of the instruction which reads as follows: "If the jury further believes from the evidence that plaintiff sold lumber which defendant refused to receive, had to sell the lumber, under said contract for defendant's account at a lower price than the price which defendant agreed to pay plaintiff for it on account of defendant's refusal to receive and pay for said lumber then the jury will find for the plaintiff," etc. This instruction leaves out of view entirely the duty of the plaintiff to show that he sold the lumber within a reasonable time after breach of the contract at the highest price obtainable in the market at Gulfport obtaining after the breach and before sale. There was dispute on the question of the state of the market during that period. The appellee contending that the price obtaining in the months of March to September inclusive was much lower than the contract price. Appellant's contention and proof was to the contrary and was supported by the testimony of other lumber...