Harper v. Virginia Lumber & Box Co.

Per Curiam.

Under the contract between the parties, as found by the jury, plaintiffs are entitled to recover for the timber sold and conveyed by them to defendant, three dollars per thousand feet; and also, one-half the profit, if any, resulting from the manufacture of said timber, and its sale by defendant. It was agreed that defendant should sell said lumber to the “best of its ability.” It is not contended by plaintiff that defendant failed to exercise good judgment in the sale of the lumber, or that it failed to get the best market price for the same.

There was conflict in the evidence tending to show the number of feet of timber cut and manufactured by defendant; it was admitted that defendant has paid to plaintiff on account of said timber the sum of four thousand dollars; under the instructions of the court, the jury has found that plaintiffs are entitled to recover the additional sum of $800 for stumpage.

There was no evidence tending to show that defendant made any profit by cutting and manufacturing the timber, or by the sale of the lumber. The evidence tended to show a loss on the operation because of the price at which the lumber was sold. The burden was on plaintiff to show that the lumber was sold at a profit. There was no error in the instruction that plaintiffs were not entitled to recover any sum as their share under the contract in profits. It is immaterial that other sawmill operators made a profit on lumber manufactured and sold by them during the years 1924 and 1925. In this action, in the absence of evidence tending to show bad faith on the part of defendant, it is liable only for profits made, and not for profits which it might have made.

Defendant cannot complain that after the evidence had been introduced, plaintiffs consented that the jury find that the contract between them and defendant was as alleged in the answer, and not as alleged in the complaint. The evidence tending to sustain plaintiff’s contention that under this contract it was entitled to recover in this action, was properly submitted to the jury.

We find no error in either appeal. The judgment is affirmed.

No error.