Eastman Gardiner Hardwood Co. v. Hall , 137 Miss. 354 ( 1924 )

Ethridge, J.,

delivered the opinion of the court.

L. A. Hall was the plaintiff in the court below, and sued the appellant for breach of contract. The contract involved the cutting of timber from certain lands and was made by correspondence. The first letter reads as follows:

“Mt. Olive, Miss., December 26, 1922.

“Eastman Gardiner Hardwood Oo.—Gentleman: In reply to your letter of 22d will say I have cut and hauled hardwood logs for about ten years. Also I worked for Mr. Cato- when he was here. 1 have looked over the timber and don’t think I could haul it for seven dollars per thousand feet. As all the timber in the dryest places has been cut and some of it would be to scrap over, and there would be so many bridges to build, I could haul it for eight dollars per thousand feet, and could commence as soon as it dries out a little. It- has been raining here for the last few days and the swamps get awful bad. So if you think you could give eight dollars per thousand feet, you could send some one over here as I don’t know where the line is on the north end of the timber. Also could you fix it so I could g’et cars to load it on. I can’t get a car now at all. So please let me hear from you at once.

• “Yours truly, [Signed] L. A. Hall,.”

This appellant replied to this letter as follows:

“December 27, 1922.

“Mr. L. A. Hall, Mt. Olive, Mississippi—

Dear Sir: Replying' to your letter of December 26th: If you could arrange to haul the timber that .we have on the Smith land between now and the first of May, we will be willing to pay your price of eight dollars to cut, haul and load on cars.

“The reason we want to put a limit on the time is because we do not feel that the present lumber market will continue to the extent that it will justify our making the price on an unlimited time. However, just at the present time the market will stand eight dollars for this work and if you can begin within the next few days and continue to put the logs out, we believe you can clean it up before May 1st.

“Please let us know if you decide to put this timber on for us.

“Tours very truly,

“Signed] Eastman Gardiner Hardwood Co.”

The appellee replied to this letter as follows:

“Mt. Olive, Miss., Dec. 30, 1922.

“Eastman Gardiner Hardwood Company—

Sir: In reply to your letter of the 27th I don’t think I could get the Smith timber all out by the first of May, for there is water all over the swamp now where most of the timber is and if it should be a wet spring I could not haul it before May and I don’t want to promise something that I can’t do, but if it gets dry in the swamp and you still want it out I worild be glad to make a deal with you.

“Yours truly, [Signed] L. A. Hall.”

To which appellant replied as follows:

“January 2, 1923.

“Mr. L. A. Hall, Mt. Olive, Mississippi—

Dear sir: Keplying to your letter of December 30th: It will be satisfactory to us for you to begin hauling the Smith timber whenever it is convenient for you to do so,, or whenever you can get in the swamps, and we will not hold you to a definite time for the completion of moving this timber. All we ask you to do is to let us know when you are ready to begin hauling so we can send you a description of the land as we would not like to take any chances in having you cut 'over our line.

“Yours very truly, ■

“[Signed] Eastman Gardiner Hardwood Co.”

To this the appellee replied:

“Mt. Olive, Miss., January 5, 1923.

“Eastman Gardiner Hardwood Go.—Sir: In reply to your letter of January 2d, I will be ready to start hauling the Smith timber as soon as the swamp dries out a little. Will you help me about gutting cars to load the timber on? It is a hard matter to get cars now, and I will have to load some along on account of getting money to have timber cut. Also would you sell the timber on the Smith land? I would like to buy it. I will let you know as soon as I can get in the swamps.

“Yours truly, [Signed] L. A. Hall.” ■

To which the appellant replied: . .

“January 8, 1923.

“Mr. L. A. Hall, Mt. Olive, Mississippi—Dear Sir: In reply to your letter of January 5th: Of course we will, do all we can to assist you in gutting cars, and do not anticipate any trouble whatever in getting all the cars we need to load out the logs at Crump Spur.

“With reference to the tie timber on this land, wish to state that we would not care to sell the tie timber, except on condition that nothing be cut until after the logs for our hardwood mill have beeh cut. We would not care to have any one cutting ties on land that had not been cut over. If an arrangement of this kind would be satisfactory, let us know and we will be glad to make you a price on all tbe tie timber we have.

“Yours truly,

“[Signed] Eastman Gardiner Hardwood Co.”

The appellee wrote the appellant as follows:

“Mt. Olive, Miss., February 26, 1923.

“Eastman Gardiner Hardwood Co.—Gentlemen: I think that I can start to hauling the Smith hardwood for you by the first of March so please send me the description of the Smith land so I will know where to make roads and where to bridge the river, also how you want the timber cut, how small and what length and so on. Please let me hear from you at once.

“Yours truly [Signed] L. A. Hall.

“Mt. Olive, Miss., R. '5, Box 13.”

To which the appellant replied:

“February 28, 1923.

“Mr. L. A. Hall, Route No. 5, Box Number 13, Mt. Olive, Miss.—Dear Sir: Replying to your letter of February 26: When you start cutting on the Smith timber, the land numbers which we are inclosing, please be sure and follow the following instructions:

“Cut logs twelve, fourteen and fifteen feet unless it is a case of saving timber or using up a tree. In cases of this kind you can cut a ten-foot log, if necessary. We want all of the sound timber cut close to the ground. Do not leave any high stumps. The fact of the matter is, we are not cutting anything above sixteen or eighteen inches from the ground, and in some instances we are going as low as one foot above the ground. We mention this as you no doubt know the best of the tree is in" the butt cut, and all of the good timber that is left in the stumpage is simply a loss. We want to cut this timber so that we will not have anything smaller than twelve inches in diameter twelve feet above the ground, except in the hickory and ash. In these two items we would like to have them cut down as small as eight or ten inches. We want you to use your judgment in cutting this timber and cnt the logs for grade as much as possible. In other words, if you have a tree that has twelve feet of good material and probably another cut or two of rough material, do not cut yoúr butt log sixteen feet and make part of it a rough log and part of it clear, but cut the log twelve feet long and cut your rough stuff into lengths suitable to clean up the trees. We do not want you to haul any rotten or unsound timber. The freight rate is very high and will not justify us to try to handle. When you start at any particular place, try to clean up, as you go.

“As soon as you have gotten started and have some logs on, please let the writer know and he will make a trip over there to show you anything you might need to know with reference to getting this timber out.

“Yours very truly,

“[Signed] Eastman Gardiner Hardwood Co.”

Appellee wrote appellant the following letter:

“Mt. Olive, Mass. June 14, 1923.

“Eastman Gardiner Hardwood Co.—Sir: The swamp has just got dry enough so I can get in there to haul the Smith hardwood for you and have started to cutting some logs and putting my bridges back from where, the big rain washed them up so I will send you some logs in a few days.

“Yours truly, [Signed] L. A. Hade.”

To which letter the appellant replied as follows:

“June 15, 1923.

“Mr. L. A. Hall, Mt. Olive, Miss.—Hear Sir: Replying to your letter of June 14th: If you have gone ahead and cut any of the Smith timber without taking the matter up with us, we are certainly very sorry.

“The last correspondence we appear to have had with you in regard to this was in December last. At that time we wrote you that you could go ahead and put on the timber between that time and May 1st, so you had no right at all to log any of this timber after May 1st on that letter. All of this timber has been sold to the J. T. McBainey Lumber Company and is their property. Do not load any of it to us at Laurel.

“Tours very truly,

“[Signed] Eastman 'Gardiner Hardwood Co.”

The appellee testified that he had arranged to cut this timber and hired two men to haul it at four dollars per thousand feet, that he had hired cutters, and that he could have loaded it on the cars in accordance with the contract at six dollars per thousand feet, and that he would have made two dollars per thousand feet upon his contract. He further introduced timber estimators, who testified to the amount of the timber upon said land. He further testified that the reason he did not begin earlier was that the swamps were covered with water and he could not go in and haul the timber until June. That he had no knowledge of the sale until he received the letter above set out, notifying him of that fact. He further testified that he did not make during the period it would have required to have performed this contract more than one hundred thirty dollars. The defendant rested upon the plaintiff’s proof, offering no testimony in reference to the transaction at all, but moved for a directed verdict, which was refused.

The appellant contends that it should have had a peremptory instruction, because the plaintiff did not prove that he had an established business in the cutting of logs by which he could calculate with reasonable certainty the amount of his damages, and relies upon Crystal Springs Ice Co. v. Holliday, 106 Miss. 714, 64 So. 658, as authority for this position. The business here involved is not like a mercantile or ice business, where the profits or loss depend upon the amount of trade secured, uncertain prices, and other charges. The contract here involved was for a specific price, and the plaintiff’s evidence is that he contracted as to certain parts of the work, and that he could perform the other work so as to make the net cost to him six dollars per thousand feet. We think the proof is sufficient to show with reasonable certainty that the breach of the contract damaged the plaintiff, and that the elements of damages are proven with reasonable certainty.

It was also contended that it was error to introduce the letters from, the plaintiff to the defendant, because they were not attached to the declaration, and it is contended that they must be so attached under sections 734 and 735, Code of 1906 (sections 517 and '518, Hemingway’s Code), which read as follows:.

“These shall be annexed to or filed with the declaration in every case founded on an open account, a copy of the account or bill of particulars of the demand; and in actions founded on any writing, a copy of such writing, with the names of subscribing- witnesses, if any, shall be annexed to or filed with the declaration; and evidence thereof shall not be given on the trial unless so annexed or filed; and the same shall constitute a part of the record of the cause.

“A copy of any writing of which profert is made, or ought to be made, in any pleading, shall be annexed to or filed with the pleading, with the names of the subscribing* witnesses, if any, and evidence thereof shall not be given at the trial unless so annexed or filed; and every writing* filed with any pleading, as part of it, shall thereby become a part of it, and be so considered for all purposes of the action.”-

This is not a suit seeking* the performance of a contract, but is a suit for the breach of a contract founded in tort, and the court below committed no error in admitting the letters.

It is next insisted that the proof does not show that the plaintiff was willing and able to perform his contract. The plaintiff testified that he did not have the money to finance the entire contract, and that he depended or calculated on getting* money from the defendant for the cars as loaded. It does appear from the letters above set out that he expected to procure pay for the lumber as delivered on cars. He succeeded in making contracts which bound other parties to perform at least a part of the contract, and it does not appear that the plaintiff would not have been able to have carried out his contract. It is true that the proof shows he had not arranged with the defendant specifically for financial aid, yet we think he had a right to assume from the correspondence with the defendant that it would take the logs as loaded and pay for them.

It is next insisted that the judgment must be reduced because the plaintiff did not reduce his damages or make reasonable effort so to do. The plaintiff testified to expending certain moneys in preparation for carrying out the contract amounting to something like five hundred dollars, a part of which was for the purchase of a wagon and mules, and some for building bridges. This evidence was excluded by the court below, it being objected to by the appellant in the first instance, and it is insisted that the court ought to have deducted these sums and the one hundred thirty dollars from the amount of the recovery.

We think the court below rightfully excluded this evidence, and that it cuts no figure in the case. However, we think that the one hundred thirty dollars earned should have been deducted from the amount of recovery. In all other respects we find no error in the record. If the plaintiff will remit one hundred thirty dollars, the judgment will be affirmed; otherwise, it will be reversed and remanded.

Affirmed, with remittitur.