Ward Furniture Mfg. Co. v. J. B. Isbell & Co.

• Decision Date: 04 February 1907
• Citation: 99 S.W. 845
• Parties: WARD FURNITURE MFG. CO. v. J. B. ISBELL & CO.
• Court: Arkansas Supreme Court

99 S.W. 845

WARD FURNITURE MFG. CO. v. J. B. ISBELL & CO.

Supreme Court of Arkansas.

February 4, 1907.

Appeal from Circuit Court, Sebastian County; Styles T. Rowe, Judge.

Action by J. B. Isbell & Co. against the Ward Furniture Manufacturing Company. From a judgment in favor of plaintiff, defendant appeals. Reversed, and remanded for new trial.

This suit was brought by appellees against appellant to recover a balance of $686.48 alleged to be due appellees on lumber sold and delivered to appellant. The appellant answered denying any indebtedness to appellees, and by way of cross-complaint alleged: "That it entered into a contract with plaintiffs to buy between 60,000 and 100,000 feet of lumber from them, to be of what is termed No. 1 and No. 2 common grade, and to be air dried from 60 days to 6 months; that certain lumber was shipped to it by plaintiffs, but that it was not the grade nor character of lumber it bought from plaintiffs, and that defendant promptly notified plaintiffs of this fact and refused to accept the lumber that did not come up to contract specifications; that 28,116 feet of lumber so shipped was according to contract, and was accepted by defendant, and that plaintiffs' account with it was credited with the contract price of 28,116 feet of lumber, amounting to $337.39, and the freight thereon, amounting to $65.79, and that, after giving said credit on plaintiffs' account, plaintiffs are indebted to defendant in the sum of $209.36, balance due it on account." Appellant alleged that an item of $212.13 for freight was paid by it for appellees on lumber shipped to appellant and rejected. Appellant prayed judgment on its cross-complaint for $209.36, with interest thereon from the 16th day of December, 1904. Appellees' reply to the answer and cross-complaint admits the execution of the contract set up, but denies all the other allegations of the answer and cross-complaint, and alleges that the lumber was sold to appellant upon the understanding that no claims were to be allowed against it unless reported at once, and alleges further a custom in Ft. Smith that lumber sold as this was should be inspected at once and report made of same to the seller, and that appellant failed to conform to this custom.

The contract out of which the litigation arose is as follows: "11-10-04. Sold to Ward Furniture Mfg. Co. 60,000 to 100,000 ft. oak lumber 1 to 2 in. thick from 6 to 20 ft. long at $12.60 per M. f. o. b. mills, 60 days to 6 mos. old, No. 1 and 2 Com., car furniture. J. B. Isbell & Co., per Isbell." The $686.48 sued for represents the purchase price of six car loads of lumber sold by appellees to appellant under the contract. The lumber was shipped from appellees' mills in Sevier county to appellant at Ft. Smith, Ark. The first car load was shipped November 15, and the last December 7, 1904. With the invoice and the first car load was a letter from appellees saying: "We find that the boys loaded small amount of 2½ in. and 3 in. which was an error in the shipping clerk." On November 30th, December 1st, December 2d, and December 6th, appellant wrote appellees expressing dissatisfaction with the lumber that had been shipped as to its age, complaining that the lumber was too green, that the railroad had charged extra freight on that account, and asking appellees not to ship any more, etc.

The letter of December 6th from appellant to appellees is as follows: "The lumber shipped us has now all come in, and we are unable to find a car load of lumber in the whole lot that will come within the terms of our contract with you. There is a small portion of lumber in the last car that may be over 60 days cut, but it is mixed up with green lumber. In the first car there was some No. 2 mill culls that appeared to be dry, but nothing that would do us any good. We have instructed our lumberman to unload and pile this lumber, but we cannot receive it until it is all 60 days old. Our contract with you called for lumber from 60 days to 6 months old, and you will remember that you informed me, when making the sale, that there would be very little of this lumber but what would be 4 months old. We are very much disappointed with it, as we wished to use some of it at once, and have not the time to take care of green lumber, as you will remember that I told you that we did not under any circumstances buy green lumber." To this letter appellees replied (December 8, 1904) "that all the lumber shipped was from 60 days to 6 months old, except a small amount that was about 40 days old." Appellee Isbell testified that this letter of December 8th contained all the complaint, so far as he knew, that appellees had to make about what appellant had written as to the condition of the lumber, and the disposition appellant proposed to make of it.

There was no further written correspondence until February 1, 1905, when appellant wrote appellees as follows: "We have your statement which we return. We will render you an account of the green lumber shipped to us on November and December as soon as we have checked it up, which we have now ordered to be done. We wrote you at the time that, inasmuch as the lumber was most all green, we would pile it up and check it out when it had been on sticks 60 days. It is a very tough lot of lumber, and a good deal of it is worthless for our use. However, all of it that is rejected on account of being mill culls will be carefully stacked up so that you may have it inspected. If we throw out any that can be used in manufacture, or that would not be graded as a mill cull, we shall be pleased to receive it as lumber. There will be some extra freight on account of the lumber shipped to us green." To this appellees replied, February 21, 1905, as follows: "This is in reply to yours of 2-1 in reference to your lumber account. The cause of delay in replying was the serious illness of Mr. Isbell. You seen to take a very decided stand in this matter. The lumber was shipped to you just as it was sold to you. You are claiming green lumber was shipped. This is positively not the case, as we had no oak lumber under 40 days old, and were not making any oak at the time your shipments were made. There was ten, or possibly twelve, thousand feet of this lumber at the first shipments that was only about 40 days on sticks, but had positively been on sticks that length of time. The balance of the lumber shipped you was from 60 days to 6 months old when shipped. Now, we know this to be a fact. Now, what we want you to do is to make settlement on this as per invoice, unless you have some lumber that is worthless to you. Let us hear from you along this line with settlement. Unless it is settled within a very few days, we will put it in the hands of an attorney for collection and his fees added. * * * Trusting you will make prompt settlement of this matter, we are." Witness Isbell was asked this question: "Q. Now, in this letter you told him that you wanted him to pay for the lumber, unless there was some which was worthless to him, and you stated this in answer to a letter written February 1st?" And answered: "A. Yes, sir; that is right. We don't want anybody to pay for anything that is worthless. If it had been properly inspected when it first arrived, it would have graded up to our contract."

In a letter of February 22, 1905, appellant, writing in reply to appellees' letter of 21st, among other things, says: "We intended to inspect this lumber some three weeks ago, but the weather would not permit it." And, in a letter of February 27, 1905, appellant says: "As we stated in our former letter, we are now engaged in inspecting the lumber. It is a very poor lot of lumber, will probably be through in about four days," etc. On March 6, 1905, appellant wrote as follows: "We have been over the entire amount of oak lumber shipped to us by you and find that there are 62,460 feet of mill culls. This lumber is not merchantable and is worthless for making furniture. This lumber is here for your inspection, and we wish to have some kind of settlement of it at once, as we have quite a little money in it. It is possible that the lumbermen would make some kind of an offer for sheeting and dimension stock. The balance of the lumber, 26,295 feet, we have placed to your credit although even this is mostly shipping culls; there not being 5,000 feet of No. 1 common in the whole lot. As we said before, the lumber has been a great disappointment and source of damage to us, and we feel sure that Mr. Isbell did not know the quality of the stuff when he guarantied to us that it was a better lot of lumber than that shipped to us before." Other correspondence passed looking to a settlement, but it is unnecessary to set it out.

Appellee Isbell stated that he notified appellant that there was some 10,000 or 12,000 feet that did not come up to the contract, and that he would have had no objection to appellant's rejection of that, if it had settled for the other. There were also some 19 or 20 other pieces that did not come up to the contract, that the appellees had no objection to appellant's rejection of same. It was testified by appellee Isbell that it was three months and a half from the time shipment began until appellees received a report showing that the lumber had been inspected, and that appellant had other objection to the lumber besides that pertaining to its age. Appellee contends that this report was contained in the letter of appellant to appellees of March 6, 1905.

J. B. Ward, of appellant company, testified that, when the shipments of lumber arrived, his inspector made examination of it, and reported to him of its character and condition, and that he notified appellees that, on account of the green condition of the lumber, it would have to be put on sticks to dry, and he directed that it be put on sticks, and kept for 60 days; that it would have been about the latter part of January or 10th...