The Indianapolis Cabinet Company v. Herrman

• Decision Date: 09 June 1893
• Docket Number: 842
• Citation: 34 N.E. 579,7 Ind.App. 462
• Parties: THE INDIANAPOLIS CABINET COMPANY v. HERRMAN
• Court: Indiana Appellate Court

34 N.E. 579

7 Ind.App. 462

THE INDIANAPOLIS CABINET COMPANY v. HERRMAN

No. 842

Court of Appeals of Indiana

June 9, 1893

Petition for a rehearing overruled Oct. 10, 1893.

From the Marion Superior Court.

Judgment affirmed.

A. C Harris and L. A. Cox, for appellant.

A Seidensticker, J. S. Duncan and C. W. Smith, for appellee.

OPINION

DAVIS, J.

This action was instituted by appellee, against appellant, to recover damages for the alleged breach of a contract, the terms of which will be hereinafter stated.

The issues joined were submitted to a jury for trial; but, after the evidence was heard, the jury, by agreement of the parties, was dismissed, and a special finding of the facts was made by the court, and on the conclusions of law thereon stated, judgment was rendered in favor of appellee, for $ 426.65.

Each party excepted to the conclusions of law, and appellee appealed to general term, where errors were properly assigned by each of the parties.

In general term, the judgment of the special term was reversed, with instructions to restate the conclusions of law and to render judgment for appellee in the sum of $ 1,836.01.

The principal question involved in this appeal is as to what is the proper construction of the agreement upon which suit is brought, which is as follows:

"December 22, 1887.

"The Indianapolis Cabinet Company, Indianapolis, Ind.:

"GENTLEMEN--Please furnish me with whitewood in the following proportions, and as hereinafter specified, at $ 8.50 per M. feet, F. O. B., Indianapolis, Ind. Terms, sight draft after receipt and inspection of goods in New York. Deliveries to be made at the rate of 1 1/2 car loads per month, for six consecutive months.

"All dry sizes.

"8,000 pieces 33 x 15.

"10,000 pieces 35 x 16.

"2,000 pieces 25 x 15.

"500 pieces 43 1/2 x 16.

"1,000 pieces 25 x 11.

"1,750 pieces 24 x 12.

"2,000 pieces 29 1/2 x 13 1/2.

"2,000 pieces 25 x 12.

"5,000 pieces 39 x 15.

"1,000 pieces 74 x 18.

"4,000 pieces 33 x 12.

"1,000 pieces 25 x 10.

"1,750 pieces 24 x 11.

"2,000 pieces 23 3/8 x 11.

"2,000 pieces 29 1/2 x 11.

"All this stock must be stout, 1/4 of an inch thick when dry, like sample furnished you to-day, of which I keep a duplicate in New York, being part of a shipment from you during last month.

"Quality of whitewood not to be inferior to former shipments, admitting, however, five per cent. of the amount ordered to contain split, not exceeding six inches in length--should more than this percentage be defective, I am to have the right of placing them at your disposal--five per cent. with sound knots, balance to be clear stock.

"Please state if you accept order under these conditions, and how soon I may expect first shipment.

"Signed: Yours truly,

"H. HERRMAN.

"Accepted:

"INDIANAPOLIS CABINET CO."

The court also found that for many years prior to said date the appellee had been engaged in the business of manufacturing and dealing in all kinds of lumber used in making furniture, and that appellant had for many years been engaged in manufacturing stock or cut whitewood used in the manufacture of furniture; that appellee had been accustomed to buy and appellant to sell cut whitewood in car load lots; that, "in the lumber trade, the term car load as applied to whitewood does not mean any specific number of feet or quantity, nor does it appear from the evidence how many hundred or thousand feet of whitewood are contained in an average car load, farther than may be inferred from the fact that the smallest cars will contain about 35,000 feet of whitewood and the largest cars about 60,000 feet of such whitewood"; that in November, 1887, appellant shipped to appellee a car load of whitewood, after which the letter above set out was written and the order accepted; that on December 28, 1887, appellee wrote appellant that, in reliance on such acceptance, he had entered into a large contract for furniture, and for them to hurry "first car load with all possible speed"; that on January 30, 1888, appellant wrote, "will forward the first car sometime next week, and will make shipments promptly thereafter"; that on February 2d appellee wrote again, "I rely on your promises to forward the first car some time next week and the following shipments promptly thereafter, and in consequence I will not order the stock elsewhere"; that on February 11th appellant did ship a car load of cut whitewood of 40,000 feet; that the same was duly inspected in New York, and 29 per cent. of the whitewood contained in said shipment did not fulfill the requirements of the contract in respect to quality; that appellee promptly notified appellant of the result of inspection, and that the rejected material had been placed at disposal of appellant, offering, however, to take the same at 50 per cent. of contract price, which was accepted, and appellee fully paid appellant for the entire car load; that in accepting said offer appellant stated, "this kind of a loss can not be allowed to occur in the cars which we ship you," and suggested that appellee should have his agent or some one here to inspect the goods and receive them; that on March 26th, appellant shipped another car load containing 39,000 feet, a part of which was also defective and did not fulfill the requirements of the contract, of which due notice was given appellant, and payment in full was made on same terms as before; that, in addition to the two cars, about a half a car load of such lumber had, prior thereto, been delivered by appellant and shipped with other material through the branch office of appellee; that no part of the balance of the order was ever shipped; that in subsequent correspondence appellant asked for inspection at Indianapolis, and appellee insisted on inspection in New York, and suggested that appellant might secure some representative there to aid in the future inspection, and, farther, he duly notified appellant that if the contract was not complied with he would be required to purchase the material elsewhere, and would hold appellant liable for the difference in price; that appellee was compelled to, and did, pay $ 18 per thousand for the whitewood, in order to comply with his obligations, on account of the failure of appellant; that the freight from Indianapolis to New York was $ 1.45 per thousand; that the total amount furnished by appellant, under said contract, was 86,924 feet.

We have not endeavored to set out the special findings in full, but have called attention to the substance of so much thereof as may be necessary for the determination of the question presented.

The contention of appellant is, that the writing under the evidence fails to constitute a...