Western Colorado Power Co. v. Gibson Lumber & Coal Co.

• Decision Date: 01 July 1918
• Docket Number: 8963.
• Citation: 176 P. 318,65 Colo. 288
• Parties: WESTERN COLORADO POWER CO. v. GIBSON LUMBER & COAL CO.
• Court: Colorado Supreme Court

176 P. 318

65 Colo. 288

WESTERN COLORADO POWER CO. v. GIBSON LUMBER & COAL CO.

No. 8963.

Supreme Court of Colorado

July 1, 1918

Rehearing Denied Dec. 2, 1918.

Error to District Court, Mesa County; Thomas J. Black, Judge.

Action by the Gibson Lumber & Coal Company, a corporation, against the Western Colorado Power Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed, and cause remanded.

C.J. Moynihan, of Montrose, and R. H. Walker, of Grand Junction, for plaintiff in error.

Watson & Smith, of Grand Junction, and Benjamin Griffith, of Denver for defendant in error.

BAILEY J.

This action was brought for the recovery of money alleged to be due for lumber furnished by plaintiff to defendant. The transaction was based upon a written contract incorporated in the pleadings, and also upon certain oral modifications thereof, the terms of such modifications being in dispute. Verdict and judgment were for plaintiff for $4,603.68, and costs. Defendant assigns error and brings the cause here for review.

The fourth and fifth assignments of error reach the questions of the propriety of an instruction given by the court, and of one tendered by the defendant and refused.

By the written contract the plaintiff agreed to furnish the lumber in question at the rate of $21.00 per thousand feet, board measure. The first and second items of the bill, which is expressly made a part of the contract, are for certain pieces 2X8X16, part of which are double-grooved and part single-grooved, 'with Splines,' and each item is carried out in board measure. It appears that splines are narrow strips to fit the grooves cut into the larger pieces with which they are incorporated in the bill. From the itemized inventory it is clear that the splines were included therein and were to be furnished as a part of the bill of lumber. According to the written agreement they were to be of the same quality of material as the balance of the lumber white, or Engleman spruce. It is admitted that the specifications as to the kind of material were later orally modified as to the splines, and it was thus agreed that they were to be of Oregon fir. It is contended that defendant by oral agreement undertook to pay extra for the splines at one cent per lineal foot. The defendant denies that it was to pay for the splines as an independent item and contends that they were to be furnished as part and parcel of the 2X8X16 pieces designated in the written contract.

The question of an agreement to pay for the splines as a separate and independent item was for the jury to settle under the evidence upon proper instructions. This item aggregates $1,819.00, with interest, and the determination of whether there was an independent and separate contract therefor becomes a matter of controlling import. The attention of the jury was called to this question by an instruction of the court in the following language:

'You are instructed that the original contract provided that the plaintiff furnish the defendant with white or Engleman spruce splines. If you find from the evidence that the contract as originally entered into was changed with the consent of both parties so that clear Oregon fir splines, surfaced on four sides, of dimensions of 1/2 by 1, should be furnished, and that at the time of such change the defendant expressly agreed to pay for such splines so furnished at the rate of one cent per lineal foot, then in estimating the amount of plaintiff's recovery you will give it credit for all splines furnished under the contract at that rate; should you find that there was no express agreement on the part of the defendant to pay 1 cent per lineal foot for the

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