Turner Lumber Co. v. Tonopah Lumber Co.

145 P. 914, 38 Nev. 338

• Court: Nevada Supreme Court
• Decided: April 15, 1915
• Docket: No. 1898
• Status: Published

Opinions

By the Court,

McCarran, J.

(after stating the facts):

[1] There can be no serious attempt to deny the existence of a contract between the parties to this action. The terms of the contract may be found in the several letters set forth in the statement of facts, and -especially in the letter from appellant to respondent dated December 6, and from respondent to appellant December 24, and from appellant to respondent December .27, and from respondent to appellant January 7, 1907. This contractual relation established by these respective communications was manifested by the letter of April 24 from appellant to respondent, in reply to which respondent referred to former communications between the parties, and especially to respondent’s letter of January 7, 1907, wherein they accepted appellant’s order for 1,000,000 feet of lumber as per appellant’s letter of the 27th of December, 1906. This contractual relation was established at the instance and invitation of appellant, as is evidenced by their letter of December 6, 1906.

The terms of the contract essential to the principal issue in this case are set forth in appellant’s letter of December 27, 1906; and this letter, together with respondent’s letter in reply thereto, to wit, of date January 7, 1907, in our judgment evidenced a meeting of the minds of the parties as to three essential things in this case; that is, the amount of lumber, the season in which the .lumber was to be cut by respondent, and the time of delivery — the latter limited only by a specific condition, to wit,"when dry.” In this respect, it may be well to note that respondent’s letter of January 7,1907, in reply to appellant’s letter of December 27, 1906, specifically mentions these terms in detail. The letters referred to are as follows:

"Tonopah, Nev., December 27-06.

"Messrs. Sunset Lumber Co., Sattley, Cal. — Gentlemen: We are in receipt of your letter of December 24th and are pleased to hear that you do not intend to discontinue the lumber business entirely. We would like very much to enter into a contract with you for 1,000,000 feet or as near that as possible, providing, of course, that you will cut the same quality of lumber that you did during last year and if agreeable to you, we are willing to close this contract at the present time, the lumber to be cut during the coming season and delivered when dry. Prices to be based on Truckee river price list September lst-06 which is at present in vogue. If this is satisfactory to you, write us a letter to this effect and we will consider the matter closed until such time as you start cutting when we will forward to you a cutting list.

" Awaiting your reply, we are,

"Yours truly,

"Tonopah Lumber Co.,

" By A. J. Crocker.

"R.”

"Sattley, Sierra Co., Cal., 1-7-07.

"Tonopah Lumber Co., Tonopah, Nev. — Gentlemen: Replying to your favor of the 27th ult. addressed to the Sunset Lumber Co., beg to say that the writer and those associated with him will be pleased to furnish you the 1,000,000 feet or more of No. 1 common pine and fir to be cut this season and shipped when dry. The prices to be based on the Truckee river price list of Sept. 1st, 1906. We expect to cut 3,000,000 feet, including all grades, and would be pleased to furnish you some uppers, such as finish, rustic, ceiling, flooring, ship-lap, moldings, etc., based on the same list as above. Should you desire to have any of this, please let us know as soon as convenient. We expect to do business under a new name, and will notify you of the same as soon as our articles of incorporation are filed.

" Awaiting your reply, we remain,

"Yours respectfully,

"Sunset Lumber Co.,

"By Jas. M. Turner.”

Appellant’s letter of January 12 amounts merely to a confirmation of the terms agreed upon in the two former communications.

The cutting order sent by appellant to respondent April 29, 1907, pursuant to the contract, for 700,000 feet of lumber, says nothing as to " sizing” or " surfacing. ”

On June 10, 1907, respondent wrote to appellant as follows:

"Sattley, Cal., 6-10-07. •

"Tonopah Lumber Co., Tonopah, Nev. — Gentlemen: Referring again to your letter of the 29th of April, we would ask if you want the lumber surfaced. And if so, please give us a memo of the thickness and widths wanted. We would also like-to receive your Cutting order for the 300,000 feet, as per your letter of May 6th, as we will soon be ready to commence cutting on it.

'5 Yours respectfully,

"Turner Lumber Co.,

"By F. H. Turner.”

Another letter from ■ respondent to appellant, dated July 24, 1907, on the same subject, is as follows:

’ "Sattley, Cal., 7-24-07.

"Tonopah Lumber Co., Tonopah, Nevada — Gentlemen: On the 18th ult., we wrote you asking if you would want some of the lumber in the -cutting order you gave us surfaced, and if so, please let us know what thicknesses it should be. As yet, we have not received a reply. Kindly let us know as soon as convenient. Would also like to receive your cutting order' for the balance of 300,000 feet on the contract, per your letter of-May-6th. We can commence shipping soon after- the first of next month.

"Turner Lumber Co.,-

Respondent’s letter of' Septembér 20 pertains to the same subject, namely, the sizing of the lumber, and urges appellant to give them information on that subject. It is as follows:

"Sattley, Cal., Sept. 20,1907.

"Tonopah Lumber Co., Tonopah, Nev. — Gentlemen: We have written you twice asking you if any of the lumber on the order you gave us is to be surfaced or sized. As yet we have received no reply. We have quite a lot of the order on hand and as the season is getting late we are anxious to commence moving the lumber as we have to haul it with teams to the railroad. If you will kindly advise us as to the lumber you want surfaced or sized— if any — and give the thicknesses and widths desired we can commence running it out and hauling it to the R. R. and have it ready to ship when occasion requires.

"Hoping to hear from you soon, we remain,

"By F.’ H. Turner.”

As appears from'the record, the first shipping order was sent to respondent by appellant on the 29th day of September, 1907; and nowhere does it appear that appellant gave any instructions to respondent as to surfacing and sizing the lumber contained in the cutting order of 700,000 feet, except in so-far as the respective shipping orders, sent in on September 29, 1907, and subsequent thereto,, designated the surfacing and sizing of each particular order. With respect to this phase of the contract, the letter of appellant to respondent of date November 23, 1907, is significant. It is as follows-:

" Tonopah, Nev., November 23d, 1907.

"Turner.Bros., Sattley, California — Gentlemen: There will be no necessity for surfacing any of the material mentioned in our previous letter. We cannot give you any assurance as to when this material will, be ordered shipped, but will do our best to clear it up in as short a time as possible. .

«Yours truly

"Tonopah Lumber Company,

" Per A. Revert.

"AR-MF. ■ • M. F.”.'

• As appears from the record, and from the undisputed testimony of respondent, the entire 700,000 feet of lumber, as contained in the cutting order of April 29; 1907, was milled by respondent. Some of the lumber was' hauled to the railroad at Loyalton, and some held in the mill yards. It appears from the'record that several shipping orders were sent to respondent by appellant subsequent to -September 29; ■ and it also appears from- the record that respondent was in a position to fill these orders, having previously cut the lumbeh as per appellant’s cutting order of- April 29.' Some - delays- appear- on the -.part of respondent, which they contend were due to their having to size and surface the lumber after receiving the order, and on other occasions were due to the lack of cars.

It is the contention of appellant that respondent was unable, or at least failed, to comply with the terms of the contract, by failing to ship the lumber within the season of 1907; but in this respect the letter from appellant to respondent of October 26 is significant:

"Tonopah, Nev., October 26,1907.

"Turner Bros. Lumber Company, Sattley, California— Gentlemen: Owing to depressed conditions here, will ask that you cancel order 1120, for a car of 2x12. Also cancel all orders that you may have for us for the present. Just as soon as conditions improve in this locality, we shall notify you to ship our orders. Kindly acknowledge receipt of this letter.

"Very truly,

"M. F.”

This cancelation of previous orders was recalled on October 27 by the letter of appellant to respondent, as follows:

"October 27,1907.

"Turner Bros. Lumber Company, Sattley, California— Gentlemen: Last evening we wrote you to cancel order 1120 for a car of 2x12 and also all other orders that you may have for us. We wish to recall this cancellation and ask that you let shipments come forward sending the 1x12 & 2x4 first. We are badly in need of the 1x12. Kindly give this matter your prompt attention, and oblige.

" AR-MF. Per-. ”

Following this, the record discloses a telegram, as follows:

!'Tonopah, Nev. Turner Bros. Sattley. Cancel all orders except on by twelve Tonopah Lumber Co.”

This wire is acknowledged by respondents by their letter of October 30, 1907, as follows:

"10-30-07. Tonopah Lumber Co., Tonopah, Nev.— Gentlemen: Your wire of today at hand. Two cars were shipped to you yesterday but we will hold further shipment until advised by you. Yours respectfully.”

So far as the record discloses, the shipping orders canceled by appellant’s wire of October 30, 1907, were never revived, and, so far as we may determine from the record, were held by respondent pursuant to their letter of October 30, wherein they stated they would hold further shipments "until advised by appellant.”

It is the contention of appellant that respondent was guilty of a breach of the contract, inasmuch as the record discloses that on the last day of the year 1907 respondent was in. arrears, or, in other words, had failed to deliver 311,843 feet of lumber.

[2] There are many elements in this case that might be considered as decisive of the controversy, and there are many phases of the law that might apply; but we deem it sufficient to say that, so far as the facts presented by the record disclose, the court had good and substantial evidence, to warrant its finding that the defendant company, appellant herein, due to its delay in furnishing respondent with specifications as to surfacing and sizing, and due to its acts in canceling orders previously given, and never reviving the orders, was responsible for the delay in delivery.

There is some evidence in the record which goes to show that on some occasions respondent was unable to make prompt delivery of specific orders, due to climatic conditions and scarcity of transportation facilities on the railroad. But nowhere does the record disclose any complaint as to these minor details, coming from appellant.

Moreover, the record fails to disclose any notice of rescission or cancelation of the contract given by appellant to respondent; nor does the record disclose any acts on the part of appellant from which or by reason of which respondent could reasonably have inferred that appellant considered the contract as rescinded, or that appellant intended rescission of the contract. ■

On March 1, 1908, respondent addressed a letter to appellant,-part of which is as follows:

"We have on hand in Loyalton, ready for immediate shipment, the following lumber: * * * We would be very much pleased to ship this in the near future, as this is stock cut for you; would ask you to strain a point and take it.”

To this letter, appellant replied:

"We are in receipt of your letter of March 1st, and beg to advise that we cannot at this time use any of the material contained in your letter of that date. ”

On May . 25, 1908, respondent communicated with appellant, as follows:

"After looking over all our communications with you, we do not see any reason why you should- not take the balance of the lumber you ordered from us on.April 29th, 1907, — your order No. 1028. We therefore insist that you take this lumber as you agreed. The lumber was to have.been shipped when dry, and we have- held it. ever since last fall, and now that the market has declined, we do not feel that this should, be our loss. We would like •to know just what you are going to do about this matter. ”

To the foregoing communication, appellant -replied:,.

"We are in receipt of your letter of May 25th, and are surprised at the tenor of the same. If you will refer to our letters and orders, you will find that you were simply unable to take care of the orders that we would offer you, and for that reason we will ignore, your letter entirely. ■ You may take any action you may deem fit regarding, our attitude and desire, to say that under no circumstances will.we take., a ■ foot of your.-lumber,-as bluffing with us don’t go. Futhermore, we intend.to insist upon the payment.of amount due Verdi Lumber Company. You have our sentiments in the matter, and now, gentlemen,-proceed.”. .■ - ,

This letter might properly be ■ termed a repudiation of the contract by appellant, and in our judgment the court was warranted in finding that the breach of the contract took place on the date of this letter, to wit, May 27, 1908.

In this case, respondent had not only the means whereby to comply with the terms of the contract as made, but the record discloses that they did, in fact, mill and manufacture all of the lumber for which a cutting order was given them by appellant.

[3] The contract required the lumber to be shipped when dry, and there is nothing in the record from which we could infer failure on the part of the respondent to perform under this condition. This was a definite time, contingent upon the accomplishment of a certain condition of the product to be furnished; and, so far as the terms of the contract were concerned, respondent might justifiably have shipped the lumber to appellant without further order, when the lumber was dry.

The record discloses a letter in which respondent notified appellant that much of the lumber milled pursuant to the cutting order was dry and ready for shipment.

It was by appellant’s request that,"owing to unsettled conditions,” the lumber should not be shipped until further notice from them. This was a change in the conditions of the original contract, for which change appellant was responsible, and which change was made to suit the convenience and welfare of appellant. Moreover, appellant, in order to suit its convenience, delayed its orders for sizing and surfacing, and thereby caused new conditions to enter into the performance of the contract which were not contemplated in its original making; and these conditions, as we have already said, were brought about at the instance and request, and to suit the convenience, of appellant.

If the entire 700,000 feet of milled lumber was not shipped within the year 1907, it was because respondent sought to meet the convenience of appellant, at appellant’s suggestion and request, by shipping the lumber in quantities and at times as and when appellant ordered, thus delaying the delivery of the lumber.

As we have already stated, so far as the terms of the contract prescribe, the respondent' had a right to deliver the entire 700,000 feet of lumber, included within the cutting order, when the same was dry; and the record discloses that the lumber had been milled and was ready for shipment in the condition contemplated by the contract, to wit, dry, before the close of the year 1907.

It was due to respondent’s act in acceding to a change from the original terms of the contract, which change was required by and for the convenience of appellant, that the lumber was not shipped within the year 1907.

We deem it unnecessary to cite the many authorities available to bear out our reasoning and conclusion in this case. Suffice it to say that in our judgment the reasoning set forth by Mr. Justice Miller, speaking for the Supreme Court of the United States, in the case of Amoskeag Mfg. Co. v. United States, where the conditions and questions were almost identical with those at bar, is applicable to this case and conclusive of the principal question of law raised. (Amoskeag Mfg. Co. v. United States, 17 Wall. 592, 21 L. Ed. 715.) To the same effect are the cases of Boone v. Templeman, 158 Cal. 290, 110 Pac. 947, 139 Am. St. Rep. 126, and Bennie v. Becker-Franz Co., 14 Ariz. 580, 134 Pac. 280.

It is contended that the court erred in fixing the damages, for the reason that in computing the same the court did so on a basis of the market price at the time of the trial.

[4] If the computation of damages on this basis was error, we are convinced from the record that it was such an error as rather inured to the benefit of appellant, and therefore they cannot complain.

It follows that the judgment of the lower court, made pursuant to its findings of fact, should be affirmed.

It is so ordered.