Del. v. Cotten

• Decision Date: 13 June 1912
• Citation: Del. v. Cotten, 75 S.E. 122, 113 Va. 563 (1912)
• Court: Virginia Supreme Court
• Parties: DELAWARE, L. & W. R. CO. v. COTTEN.

75 S.E. 122

(113 Va. 563)

DELAWARE, L. & W. R. CO.

v.COTTEN.

Supreme Court of Appeals of Virginia.

June 13, 1912.

1. Appeal and Error (§ 859^*)—Review-Scope.

Where a case has been heard by the court, and the evidence is certified, it is to be heard on a writ of error as on a demurrer by the defendant to the evidence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3441-3445; Dec. Dig. § 859.*]

2. Appeal and Error (§ 1008*)—Review-Findings.

Where a case is tried by the court, the judgment has the same effect as the verdict of a jury, and will not be disturbed, unless plainly against the evidence, or without evidence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3969; Dec. Dig. § 1008.*]

3. Appeal and Error (§ 1047*)—Review-Rulings on Evidence—Prejudice.

A judgment on trial by the court will not be reversed for rulings in admitting or rejecting evidence, where the evidence other than that involved in the objections is amply sufficient to sustain the judgment.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. §§ 4132, 4133, 4146-4152-Dec. Dig. § 1047.*]

Appeal from Circuit Court of Norfolk.

Action by Preston S. Cotten against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. W. Willcox and Morris, Garnett & Cot-ten, for appellant.

Williams & Tunstall, for appellee.

HARRISON, J. This record shows that in August, 1908, the Delaware, Lackawanna & Western Railroad Company entered into a contract in writing with the Henderson Jarrett Company, Incorporated, of Norfolk, dealers in lumber, at Norfolk, Va., by which it was agreed that the lumber company would deliver to the railroad company, at Scranton, Pa., 100 cars of "pine collar timber, " not peeled, to be not less than 18 feet long and 30 per cent. thereof to be 10 inches in diameter, 30 per cent. 12 inches, 30 per. cent. 14 inches, and 10 per cent. 16 inches, at the price of 13 1/4 cents per lineal foot. The contract further provided that, should the material furnished fail to comply with the specifications, the railroad might return the same at the expense, including freight charges, cost of handling, etc., of the shipper. This pine collar timber was commonly known and designated as "mine props." The lumber company proceeded to fill the order, completing the same by October 27, 1908. As the lumber was delivered, the railroad company distributed the same to its various mines in the outlying district around Scranton, where the greater part thereof was promptly used. When the parties came to a final settlement of the balance due the lum ber company under the contract, differences arose as to the size of the props and the method of calculating the balance due. The railroad company insisted that the lumber company had not delivered as many props of the larger sizes as the contract called for, and further contended that in ascertaining the diameter of the logs a deduction of one inch should be made for the bark, notwithstanding the provision of the contract that the material to be furnished should be unpeeled, and, further, that when a log measured under the bark 15, 13, or 11 inches, it was to be put in the next lower class, since the contract did not call for props of that size. In other words, if a log actually measured 14 inches, including the bark, 1 inch was deducted for the bark, thus reducing the diameter to 13 inches, and then the log was to be put in the 12-inch class, because the contract did not contemplate a log 13 inches in diameter. This method of measurement made a very large difference in the diameter of the logs, and was repudiated by the lumber company as arbitrary and in utter disregard of the contract.

Various attempts were made to bring about a settlement of these differences, and in the spring of 1909 a final conference was had, which resulted, as was supposed, in a satisfactory adjustment. At this conference it...