Viles v. Am. Realty Co.

• Decision Date: 02 December 1924
• Citation: 126 A. 818
• Parties: VILES v. AMERICAN REALTY CO.
• Court: Maine Supreme Court

126 A. 818

VILES

v. AMERICAN REALTY CO.

Supreme Judicial Court of Maine.

Dec. 2, 1924.

Report from Supreme Judicial Court, Kennebec County, at Law.

Action by Blaine S. Viles against the American Realty Company. On report from Supreme Judicial Court. Judgment for defendant.

Argued before CORNISH, C. J., and PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ.

Pattangall, Locke & Perkins, of Augusta, for plaintiff.

Ryder & Simpson, of Bangor, for defendant.

MORRILL, J. By written agreement dated September 18, 1916, the plaintiff agreed "to sell to the American Realty Company and to deliver to the boom of the International Paper Company, Solon Mill, in the summer or fall of 3917, a quantity of 4-inch rough spruce and 4-inch fir pulpwood, containing not less than 75 per cent. spruce. The amount to be 10,000 cords, more or less, at the option of said Blaine S. Viles."

This contract was made and signed in behalf of the defendant by one E. E. Amey, whose name appears in the correspondence and upon the stationery of the company with the title of assistant to the president. The plaintiff delivered under this contract 9,101.35 cords of wood, and was paid therefor at the contract price of $8 per cord. He claims, and the jury has found, in answer to a question submitted to them, that—

"Everett. E. Amey agreed with the plaintiff to pay him 50 cents per cord in addition to the $8 specified in written contract dated September 18, 1916, in a conversation with plaintiff held in Portland in the early part of the year 1917, on the promise of the plaintiff to furnish between 9,000 and 10,000 cords."

This action is in assumpsit to recover that 50 cents per cord, and is before the law court upon report, upon the writ, pleadings, evidence, and finding by the jury for such final judgment "as the legal rights of the parties require."

Before approaching the decision of the case upon the issue which seems to us controlling, it is profitable, if not absolutely necessary, to interpret the written contract between the parties.

Counsel for the plaintiff contends that "the written contract did not obligate Viles to deliver 10,000 cords more or less," and was not so intended; that the words "10,000 cords" indicate "what the parties had in mind as the amount which conditions would probably warrant delivering. But it obligated no one."

We cannot so construe the contract; such construction is not in harmony with the situation and defined policy of the defendant, nor with the correspondence between the parties. The defendant corporation is a subsidiary of the International Paper Company, maintained by the latter company as a part of its organization for securing an adequate and constant supply of wood for its mills. In the fall of 1916 its agents were making contracts for its necessary supply of wood for the coming year. It was vital to the successful operation of the mills of the International Paper Company that an adequate and dependable supply of wood should be secured. Under such circumstances it cannot be considered, unless all other constructions fail, that the executives of the defendant would make a detailed written contract, with specifications as to delivery, and sealing and quality, with the intention of not binding either party, of simply affording a market for whatever amount of wood Mr. Viles might see fit to turn into Solon boom. The executives of large industrial organizations do not conduct business in that way.

In reply to the plaintiff's letter of December 28, 1916, in which he first suggested that the contract left the amount at his option, Amey replied tinder date of January 2, 1917, expressing surprise at the tenor of the letter, and concluding:

"We should not want any wood at more than $8.00 per cord delivered Solon, and we should like to hear from you definitely in regard to the amount you expect to deliver."

To this letter the plaintiff replied the next day, promising upon his return from Dead river to "attempt to give you some estimate of amount of wood we will have for you." He concludes:

"When I wrote you I thought that possibly you would be willing to increase your price if you could secure more wood. Other parties have been very glad to do this with us because of the conditions that exist this year."

This is not the language of a party whose contract did not obligate him to any extent, but is the language of a vendor on a tight market. It is entirely consistent with the construction for which the defendant contends that the contract was for the delivery of 10,000 cords within reasonable latitude consistent with good faith, and that the phrase in the contract, "at the option of said Blaine S. Viles," was an express affirmation that the latitude in amount was to be exercised within reasonable limits by the plaintiff. Their later correspondence harmonizes with this construction. On January 23, 1917, Amey wrote:

"Referring to your letter of January 3d. We wish you would advise us at this time how much pulpwood you will furnish us by river this coming spring."

Viles replies the next day:

"We shall probably have 5,000 cords more or less of wood for you in Dead river. * * * I should think, considering conditions, you would be willing to advance your price some on this short wood."

On February 1, 1917, Gilbert Oakley, resident manager of defendant, wrote:

"We wish you would advise us at this time estimate of your cut on Kennebec waters this season, which town and from where landed separately. We would appreciate this information at your first convenience."

Viles replied on February 7, 1917:

"Your letter is at hand on my return from the woods. Our cut of four foot pulpwood on Dead river will be about as follows:

"From the Buxton tract and other lots in Eustis about 6,000 cords.

"From Bog brook tract and other lots in Dead river plat about 2,500 cords."

The above was only 500 cords less than the minimum amount named in the oral agreement. The record shows quite conclusively that the agreement for the additional 50 cents a cord, which the Jury has found, was made not earlier than February 7, 1917, and that it was not an independent contract, but a modification as to price of the existing contract, a concession on account of existing conditions of an additional 50 cents per cord for the delivery of substantially the same amount of wood in the written contract specified at 10,000 cords more or less in the oral modification of that contract specified as 9,000 to 10,000 cords.

In the view which we take of this case we need not decide whether the authority of Amey to make the oral agreement is proved, or whether the defendant corporation had clothed Amey with apparent authority to make it; nor need we decide whether consideration for the oral agreement is shown. See Savage v. No. Anson Mfg. Co., 124 Me. 1, 8, 124 A. 721.

Amey was discharged by the American Realty Company in July, 1917, and had died before the trial of this case. The alleged oral agreement to pay the additional 50 cents per cord was first called to the attention of George M. Stearns, then president of the defendant company, by the plaintiff early in August, 1917. This is the first knowledge of the oral agreement attributed to any official of the defendant, except Amey. Mr. Stearns promptly denied any authority on Amey's part to make the modification of the written contract, and positively refused to pay the additional 50 cents. They had a second interview, placed by Viles as after October 12, in which the denial of liability was repeated. At this latter conversation according to Mr. Viles, Mr. Stearns said that he would take the matter up with the directors. All later interviews have been between counsel.

The defendant has pleaded by brief statement that the demand in suit was settled...