Vinson v. Little Bear Sawmills , 216 Ala. 441 ( 1927 )

The appellants took a nonsuit with a bill of exceptions because of the exclusion of the contract from the evidence.

In this ruling there was no error. The recovery sought was for an uncertain and indefinite damage for breach of an agreement pronounced by this court to be unilateral. Jones v. Lanier, 198 Ala. 366, 73 So. 535; Lucas E. Moore Stave Co. v. Kennedy, 212 Ala. 193, 101 So. 894; Lucas E. Moore Stave Co. v. Woodley, 213 Ala. 570, 105 So. 878; Southern Fuel Co. v. Southern R. R. Co., 215 Ala. 355, 110 So. 715.

Plaintiffs testified that they hauled more than 4,000,000 feet of lumber from the transfer yards to the point of destination, or rather that they hauled "all the lumber they (defendants) delivered at the transfer yard" — at the "crossroads" — and that the latter paid them for all lumber so hauled to the point of delivery. There was no binding obligation on defendants to manufacture and deliver other lumber to plaintiffs at said initial point for transportation.

The nature of the subject-matter of the present contract, the cutting and delivery of logs for transportation, as defendants desired, to place upon the yard, and the purchase and character of a vessel to be purchased in Scott v. Moragues Lumber Company, 202 Ala. 312, 80 So. 394, is sufficient to distinguish the cases.

The case of McIntyre Lumber Export Co. v. Jackson Lumber Co., 165 Ala. 268, 51 So. 767, 138 Am. St. Rep. 66; was considered in Jones v. Lanier, 198 Ala. 364, 73 So. 535, and it was indicated that a contract for the future delivery of personal property "may be void for want of consideration, or for want of mutuality if the contract or any material part thereof is wholly conditioned upon the will or wish of only one of the parties." McIntyre Lumber Export Co. v. Jackson Lumber Co., supra.

In Jones v. Lanier, supra, the agreement was that Lanier would take and pay for the entire output of Jones' "Baker's Creek mine for nine months at a stipulated price per ton, subject to appellant's coal 'proving entirely satisfactory' " to Lanier — held to be unilateral.

The contract set out in extenso in Lucas E. Moore Stave Co. v. Kennedy, 212 Ala. 193, 101 So. 894, was that the Stave Company agreed "to buy" and Kennedy agreed "to sell" his "entire production of split white oak staves produced" by the latter, "during 1920 at following prices f. o. b. cars shipping point in Mississippi and Alabama." The writing concluded with the following statement:

"In order that we may not compete with each other in the production of split staves, it is agreed that you work the territory between Oakman, Ala., on the Southern Railway, to Birmingham and from Tupelo to Birmingham on the Frisco. Kindly sign copy of this letter, which will serve as a contract."

It was held that the "seller was not legally obligated to produce any staves" under that contract.

In Lucas E. Moore Stave Co. v. Woodley, 213 Ala. 570, 572,105 So. 878, 880, the court said:

"The last contract is evinced by a letter of June 30, 1923, and which is unilateral and wanting in mutuality, as there is nothing in it binding or obligating the plaintiffs to do anything — just an agreement of the defendant to take all staves at the price fixed."

And in Southern Fuel Co. v. Southern Ry. Co. (Ala. Sup.)110 So. 715,¹ the court said "the defendant was bound to take the output of the mine," and defendant had no right to compel the other party to operate the mine and had no right in law to "maintain an action for a failure to operate the mine."

There is nothing in the instant contract giving plaintiffs the right to compel the lumber company to (1) cut the timber from the large tracts of land owned by them (Seaman and Ezell tracts of 6,000 acres); (2) or to compel them to saw the stock into rough lumber in one of its four or five mills, and deliver it upon the "crossroads" yards, or to receive all of its lumber at its planer at Red Bay. It will be noted of the alleged agreement that it was dependent on such continuous operations of many branches of lumbering, viz.: (a) Defendants' will and facility to cut and haul stock and manufacture into lumber; (b) upon defendants' will in hauling rough lumber from its mills to a designated transfer yard about 13 miles from its planer; (c) upon plaintiffs' will and ability, to "keep up" with defendants' delivery at yards; (d) and its transportation to the planing mill at a distant point. That is to say, the right of plaintiffs was dependent upon milling, the requirements of planing, and the receipt upon the yards at the planer as "instructed" by plaintiffs' agent "at the planing mill."

The plaintiff testified that the milling operation was closed, saying:

"I hauled or caused to be hauled all lumber delivered at what they call here the transfer yard up until the time this trouble came up. I think they have delivered some there that I have not hauled. I know they have kept delivering and hauling on, even after the mill was closed. I have not hauled under my contract; I never hauled any more after that trouble came up and I sued them. I hauled on, but not under that contract; other folks did too that wanted to. I guess that, up to the time I claim the breach occurred and suit was brought, I hauled all the lumber they delivered at the transfer yard. I brought suit for hauling all that in the Seaman and Ezzell tracts of land. I hauled all the lumber delivered at the transfer yard, and they paid me up until the time suit was brought."

And the objection to the introduction of the contract was sustained and exception reserved.

Plaintiff offered evidence to the effect:

"At the time I was stopped from hauling the defendants were still cutting timber on the land. They were moving it to market. There were four sawmills on the property, but I don't know if they were all operating at this time; there has been as high as five at one time. The output on an average would be, I suppose, about 50,000 feet per day; when everything was running good it would be much larger. They claimed to have two or three 15,000 to 20,000 mills and one 15,000 to 12,000 mill. Hubert Young wrote this contract.

"Cross-Examination. "After we quit hauling, they continued to cut lumber on the Ezzell and Seaman tracts. That lumber was not delivered upon the pike at a transfer station and unloaded there. It went through a nearer way."

To this tendency of evidence it was shown:

"All the lumber produced by the Little Bear Sawmills, prior to the alleged breach and the filing of the suit, that was delivered upon the yard on the pike called the transfer yard, was hauled by Mr. Vinson and Mr. Bolton, as far as I know. None of it remains there. I paid them for hauling it. Part of the lumber cut since that time has been marketed in another way over another route. I have never, that I know of, ordered Mr. Vinson and Mr. Bolton not to haul any lumber from the transfer yard.

"Redirect Examination. "Question: You no longer use that transfer yard for a transfer yard? Ans.: At the present time we are not using it.

"Question: You are not using it any more? Ans.: Not at the present time.

"Question: The way the controversy came about was in your going out by a more direct route with your lumber, was it, and missing this transfer yard entirely? Ans.: We didn't miss it entirely; we took some up to the upper point.

"Continuing on his redirect examination, the witness testified as follows: 'That was the point Bolton and Vinson had been hauling from. We carried the bulk of our lumber by a more direct route.' "

After this and evidence tending to show further cutting and intermittent conduct of the mills, the hauling of 250,000 feet of lumber by the transfer yard, and the production and hauling of rough lumber by other and more direct route to market, the witness said:

"When we used the reload station that Vinson and Bolton had been hauling from, that necessitated a reload. It cost us under this contract $3.25; the cost to the reload station was $3 I think, I would not say for sure. The cost varies as we are now hauling; it will cost us about $5.25, and cost $6.25 the other way. It makes a difference of $1."

Whereupon plaintiffs again offered the contract in evidence, and objection on the grounds that it was unilateral, the objection being sustained and exception to ruling, the plaintiffs took a nonsuit, etc., because of such adverse ruling. In the opinion of the writer, this contract was within the rule of the case by Mr. Justice Gardner, viz. Lucas E. Moore Stave Co. v. Kennedy, 212 Ala. 193, 101 So. 894, and there was no error in excluding the contract on defendants' due objection. See, also, Hazelhurst Lumber Co. v. Mercantile Lumber Supply Co. (C. C.) 166 F. 191; Cold Blast, etc., v. Kansas City B. N. Co. (C.C.A.) 114 F. 77, 57 L.R.A. 696.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

BOULDIN, J., concurs in the result.

¹ 215 Ala. 355.