Schwarz Wheel Co. v. Wilt ( 1917 )

Opinion by

Henderson, J.,

This transaction arises out of a contract for the drying of lumber. The averment of the statement of claim is that the work was done in so negligent a manner that the lumber was destroyed in the process and it seems not to be disputed that the lumber was spoiled. The defendant alleged that this resulted from the neglect of the plaintiff to take it away from the kiln when notified so to do at a time when, as the defendant alleged, the process of drying was completed. The plaintiff denied that at the time referred to the lumber was dry and the court submitted to the jury with proper instructions the question whether the injury to the lumber was- the result of the delay on the part of the plaintiff in removing it from the kilns. Another defense set up was that the defendants were not bound for a skilful performance of the contract but only undertook to do the work according to the best of their knowledge and experience, they never having dried lumber of the thickness of that which the plaintiff sent them. The only assignment of error relates to the charge of the court on this branch of the case. The contract was made over the telephone. When the lumber was shipped to the defendants the plaintiff wrote to the latter informing them of the fact and advising them that they were “to use every care in properly drying this material and prevent all checking or honeycombing. As we understand it you are to take all responsibility of properly drying this birch and will be responsible if this material is ruined in any way.” To this letter the defendants replied the next day in part as follows: “we expect to use every precaution in properly drying the birch to prevent all checking and honeycombing, but we do not understand that we are to take all the responsibility in the properly drying of same, and will not be responsible if any of it does check or honeycomb, otherwise we will shut it right off and be done with it.” The learned trial judge instructed the jury in effect that the letter last quoted did not relieve the defendants from their obligation to dry the lumber in a good and workmanlike manner and if the injury shown resulted from the defendants’ failure so to do the plaintiff was entitled to recover. We are unable to reach a conclusion that there was error in this instruction. The letter of the defendants is rather a refusal to warrant the work to be done than a denial of their duty to do the work in a proper manner. They expressly declare their intention to use “every precaution” in properly drying the material and the evidence offered by them tends to show that they not only did this but that the method adopted was that generally practiced in the drying of lumber. Having undertaken the work the defendants were obligated to exercise such skill as was reasonably requisite and if as claimed by the plaintiff the process of drying was negligently carried on nothing in the contract would relieve the defendants from the consequence of such negligence. We do not find error in the charge which would sustain a reversal.

The judgment is affirmed.