Wolf v. Boston Veneer Box Co. , 109 Mass. 68 ( 1871 )

Colt, J.

Under the contract between these parties, the plaintiffs were to make monthly deliveries of logs as they were ordered by the defendants, not less than fifteen nor more than thirty-four inches in diameter, with an average diameter of not less than twenty-four inches. The contract was to run for a year, but the defendants had the option to terminate it any time, paying the plaintiffs for the logs cut and ready for delivery or afloat which they might have on hand “ in view of their engagements ” under it. The contract was terminated by the defendants, and this action is brought to recover for the logs on hand which were procured to meet the contract.

The defendants contend that they are liable to pay only for so many logs on hand as would make an average diameter of twenty-four inches; but the difficulty with their position is, that the plaintiffs had a right to deliver logs of smaller diameter down to fifteen inches, and to receive pay for them, provided the average on the whole delivery did not fall below twenty-four inches. It was in the power of the plaintiffs, in the future deliveries which the contract contemplated, if not terminated by the defendants to bring up the average diameter to the standard named, and so render all the logs cut available under it. And the case finds that, at the time the cutting stopped, there were logs in the woods in Virginia and at the landings, which cost the plaintiffs $1247.14, all of which had been cut by the plaintiffs in order to meet their engagements under the contract. There is no suggestion that the conduct of the plaintiffs in accumulating this lumber under the contract was not reasonable and dictated by entire good faith; and there seems to be no ground for such a charge, in view of the defendants’ notice that they should probably require 50,000 feet a month, and the acknowledged impossibility of cutting and removing gum-wood in the forests of the South during the winter months.

It is insisted by the defendants that it was the plaintiffs’ duty to notify them within a reasonable time that the logs were on hand ready for delivery, which they were required to take under the agreement; and that the suit cannot be maintained without proof of such notice. No notice or demand is required by the express terms of the contract, and none is necessary unless from the nature of it the matter lies peculiarly in the plaintiffs’ knowledge. The case finds that the plaintiffs were notified in October that no more lumber was wanted, and in January following the logs on hand were measured by the plaintiffs’ surveyor and a surveyor sent by the defendants. If notice was necessary, there is sufficient evidence in this, that reasonable notice was given before the commencement of this suit.

Judgment must be entered for the plaintiffs, according to the ¿firms of the report, for $1247.14.