Warren Godwin Lumber Co. v. Lumber Mineral Co. , 120 Miss. 346 ( 1919 )

StevbNs, J.,

delivered the opinion of the court.

Appellant, a corporation, was plaintiff in the court below, and prosecutes this appeal from a judgment' entered in' pursuance of a peremptory instruction in favor of appellee as defendant: In January, 1913) appellant placed with the appellee a written order for a carload of lumber of certain specifications. Appellee, a corporation engaged in the manufacture of lumber, accepted the order, attempted to dress the lumber in accordance with its. interpretation of the written contract, and shipped the lumber to Jackson, Miss. The appellant company, engaged generally in the4 business of buying and selling lumber, contracted to sell and did ship this lumber to Barney-Smith Car Company, Dayton, Ohio. "When the lumber arrived at its destination, it was rejected Because it was dressed to a thickness of three-fourths,- when it- should have been dressed, as alleged, to the thickness of thirteen-sixteenths.. The- appellánt thereupon notified the Lumber Mineral Company that the lumber was not up to specifications, that appellant rejected the shipment, and that the lumber was held at appellee’s order. After considerable delay and correspondence, appellee directed appellant to ship the lumber to appellee’s order, Cincinnati, Ohio. In the meantime, the lumber, having been unloaded at Dayton, Ohio, was washed away by an unusual flood. It appears that appellant paid for the lumber when.it was loaded upon the car at Arbo, Miss., and before appellant received and inspected it. Appellant also paid the freight on the lumber from Arbo, Miss., to Dayton, Ohio.

This suit is by appellant to recover the original price paid, as also the freight. It appears that the lumber was finally rejected in March, 1913, and this suit was not instituted until five years thereafter. The three-year statute of limitations was pleaded, and the trial court ruled that the action was barred. -

The facts show that the contract for the purchase of this lumber was rescinded, because the lumber was not up to the dimentions specified in the' written order. Appellant and its consignee refused to accept the lumber, and tendered it back to appellee, and treated it as the property of the seller. The contract was rescinded and demand made for return of the original consideration. This being true it matters not whether the original contract of sale was written or verbal. The suit for the original consideration and freight 'paid is not a suit upon a written contract, but upon a contract implied by law. Whether the six-year statute governs in the case of an implied contract arising out of a written contract, or, as stated by Chief Justice Whitfield in Buntyn v. B. & L. Ass’n. 86 Miss. 454, 38 So. 345, “all implied contracts in this state are subject to tbe bar of three years, as provided in Code of 1892, section 3739,” we need not inquire or decide. We are satisfied that the present action is not one upon a written contract, but falls squarely within the provisions of section 3099, Code of 1906 (section 2463, Hemingawy’s Code). Foote v. Farmer, 71 Miss. 148, 14 So. 445; Buntyn v. B. & L. Ass’n, supra; Wally v. L. N. Dantzler Lbr. Co., 81 So. 489, and authorities there discussed.

Affirmed.