Tallahatchie Lumber Co. v. Cecil Lumber Co. , 124 Miss. 897 ( 1921 )

W. H. Cook, J.,

delivered the opinion of the court.

Appellant, Tallahatchie Lumber Company, sued to recover of appellee, Cecil Lumber Company, the sum of seven hundred dollars as loss of profits or damages sustained by reason of the breach of a certain contract in writing, by the terms of which appellee agreed to sell and deliver to appellant one hundred thousand feet of lumber. The correspondence evidencing the contract shows that the lumber was for immediate shipment, and was to be delivered f. o. b. New Orleans, Louisiana, for export, and appellant averred, and offered evidence to prove, that it had resold the lumber at a net profit of seven dollars per one thousand feet, and therefore that a profit of seven hundred dollars would have been made had the lumber been delivered. The lumber was never delivered, and this suit was begun to recover said sum.

Appellee, defendant, interposed the plea of the general issue, and gave notice thereunder of the following defensive matter:

“That said defendant had said property on hand to fill the order of the plaintiff, and had part of same loaded on cars when it received notice from plaintiff not to ship, said lumber,, that it was unable to hold said lumber and was compelled by reason of the act of the said plaintiff to dispose of the same, and that said lumber was taken over by the United States government.”

Plaintiff filed the following reply to defendant’s notice of defensive matter:

“The plaintiff says that, if defendant had a part of the lumber on hand and had the same loaded on cars to be shipped, it received no notice thereof, but that a long time after shipment was overdue the government of the United States for a few days placed an embargo on lumber and other things to be shipped from New Orleans; that as soon as plaintiff learned this it telegraphed defendant to withhold shipment for a few days on that account, not knowing at the time that any of said lumber was loaded; that, without notifying plaintiff, defendant diverted said lumber; that, if defendant had notified plaintiff that, the lumber was cut, loaded, and ready for shipment, it would have accepted the same, notwithstanding the embargo.

“Defendant’s reply to plaintiff’s request to withhold shipment for a few days caused this defendant to cancel said order, and, although plaintiff was then willing to carry out the contract, although defendant had breached it, and requested the defendant to perform, yet the said defendant failed and refused and canceled said contract, and never thereafter undertook to make any effort to carry it out.”

Upon the trial of the case evidence was introduced by both parties., and at the conclusion of the evidence both the plaintiff and defendant requested peremptory instructions. The motion of defendant, appellee here, for a peremptory instruction, was granted, and from the judgment rendered in the pursuance thereof appellant appeals.

There are no disputed issues of fact in this record. It appears from the evidence that the order for this lumber was accepted on or about February 14, 1918, and that for thirty days thereafter the defendant company was unable to secure cars to make any shipments on this order; that on or about March 16th, it secured three cars which it loaded for shipment to appellant, and on that date it received a telegram from appellant to the effect following:

“Steamship Company has placed temporary embargo on lumber so please withhold shipments until embargo is lifted.”

Appellee did not answer this telegram by wire, but immediately diverted the three cars to northern points to apply on government contracts, and two days later, to-wit, on March 18th, wrote appellant that three cars were loaded and ready to be billed out when its telegram was received; that the three cars' had been diverted to other points; that, since there was some doubt as to when the embargo would be lifted, it had disposed of the stock; and that the order would be canceled. On March 20th appellauts wrote appellee, declining to accept a cancellation of the order and insisting upon full performance of the contract, and stating that, if appellee had advised it by wire that the three cars were loaded, it would have arranged for shipment through other ports, and further advising that, if the embargo was not lifted within a few days, it would arrange to move the lumber by another route to its foreign clients. On March 22d appellee wrote appellant, again declining to comply with the contract and returning the order to appellant, and stating that the stock had been sold to other parties on which equipment was immediately available.

While the evidence shows that this lumber was sold to the government, it does not appear that it was ever requisitioned by the government, and appellee wholly failed to sustain this defense. In fact, the president of defendant company testified that three cars of the lumber were loaded and ready for shipment on this contract when the telegram requesting that the shipment be held for a. few days was received, and that these cars would have gone forward on the contract if this telegram had not been received. He also repeatedly testified that the failure to secure cars was the only reason the entire contract was(not filled within the first thirty days after the acceptance of the order.

The first question presented on this appeal is whether the failure of appellee to secure cars will justify the breach of the contract and cancellation of the order. It is clear from the evidence that the parties interpreted the contract to mean that appellee was to procure cars for the shipments, and the contract also provided for delivery of the lumber f. o. b. the point of destination, and in view of the construction placed on the contract by the parties, together with the stipulation regarding delivery f. o. b. point of destination, the duty was upon appellee to procure cars for these shipments. 23 R. C. L. 1338; Hurst v. Altamont Manufacturing Co., 73 Kan. 422, 85 Pac. 551, 6 L. R. A. (N. S.) 928, and note, 117 Am. St. Rep. 525., 9 Ann. Cas. 549; Culp v. Sandoval, 22 N. M. 71, 159 Pac. 956, L. R. A. 1917A, 1157, and note page 1163; Harman v. Washington Fuel Co., 228 Ill. 298, 81 N. E. 1017; McNeal v. Braun, 53 N. J. Law, 617, 23 Atl. 687, 26 Am. St. Rep. 441.

The contract in this case is unconditional, and the appellee has by its own act engaged to deliver the lumber at New Orleans, and to provide cars for that purpose, and, since it failed to provide against the consequences of a shortage of cars or other contingency, it was not discharged from performance of its contract by reason of its inability to secure cars. The rule applicable here was announced in this state in the early case of Jemison v. McDaniel, 25 Miss. 83, and is reannounced in the recent case of Piaggio v. Somerville, 119 Miss. 6, 80 So. 342, where Justice Smith, speaking for the court, says:

“The rule is that, when a party by his own contract creates a duty or charge upon himself, he is bound to discharge it, although so to do should subsequently become unexpectedly burdensome or even impossible; the answer to the objection of hardship in all such cases being that it might have been guarded against by a proper stipulation.”

See Harmon on Contracts, 824; Harmon v. Fleming, 25 Miss. 135; Abby v. Billups, 35 Miss. 618, 72 Am. Dec. 143; Mitchell v. Hancock County, 91 Miss. 414, 45 So. 571, 15 L. R. A. (N. S.) 833, 124 Am. St. Rep. 706; 3 Elliott on Contracts, par. 1891; 13 C. J. 639; 6 R. C. L. 997; Runyon v. Culver, 168 Ky. 45, 181 S. W. 640, L. R. A. 1916F, 3, and note page 10.

The next question presented by this appeal is whether the telegram notifying appellee of the temporary embargo, and requesting a few days’ delay in shipments, justified appellee in immediately canceling the order, We do not think so under the circumstances in evidence here. It appears from the evidence that- there had been a delay of thirty days in these shipments without any fault upon the part of appellant, and since appellant was not advised that any part of the lumber was then loaded, we think appellee owed the duty of notifying appellant of the existing conditions before diverting the shipments and canceling the order. The telegram in question was merely a request to hold up shipments for a few days, and upon receipt of this telegram appellee could have advised appellant by wire that part of the lumber was loaded, and asked for instructions, and, since it did not do so, the immediate cancellation of the order was not justified. There are numerous cases holding that an embargo temporarily preventing performance of a contract suspends, but does not terminate, a contract. See L. R. A. 1916F, 73, and cases there cited. However, it is unnecessary to decide whether this doctrine will be applied here in its full force, since we hold that under the facts in evidence here it was the duty of appellee to notify appellants of the existing conditions before attempting to cancel the order.

Finally, it is urged on behalf of appellee that the testimony of appellant’s sales manager that the lumber in question had been resold at a profit of seven dollars per thousand was inadmissible for the reason that the contract of resale was in writing, and this written contract was not produced. It appears from the testimony that the witness was sales manager for appellant., and as such handled this contract of resale, and that about three hundred fifty thousand feet of lumber was delivered on the contract and was paid for at the price of forty-five dollars per thousand delivered in Havana, Cuba. The contract of resale was not the foundation of this action, and it was only collaterally involved in the present controversy. The price at which the lumber had been resold was only material as to the measure of damages for the breach of the contract of purchase, and we think it was competent for the sales manager who negotiated the sale of the lumber to testify from his independent recollection the price at which it was resold. 22 C. J., sections 1224, 1231, and 1300; Norvell v. Gilreath, 189 Ala. 452, 66 So. 635; Carden v. McConnell, 116 N. C. 875, 21 S. E. 923; Elrod v. Cochran, 59 S. C. 467, 38 S. E. 122.

There is no conflict in the evidence, and it follows from these views that appellant as plaintiff in the action was entitled to the peremptory charge. The judgment appealed from will accordingly be reversed, and judgment entered here for appellant for the amount sued for and interest.

Reversed, and judgment here for appellant.

Reversed.