181 Ky. 787 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
This action was filed by J. S. Cooper and C. L. Tarter, partners, doing business under the firm name of the Crescent Stave Company, against J. W. Brown and Riley Millard to recover damages for an alleged breach of a written contract to make and deliver whiskey and oil staves to plaintiffs, f. o. b. cars at Roxana, Kentucky, and to recover the excess of advancements, made to defendants to enable them to carry out the contract, over the value of staves which were delivered by the defendants and accepted by the plaintiffs under the contract. It is alleged in the petition that plaintiffs advanced to defendants the sum of $3,329.66, and that the value of the staves delivered under the contract was $2,899.39, and the damages from the alleged breach of contract are asserted to have been $3,036.78.
A general order of attachment was procured by plaintiffs and levied upon standing trees and culled staves located upon the tract of land known in the record as the Day tract. The defendants, by answer and. counterclaim, admitted advancements to them by plaintiffs, amounting to $3,306.01, and asserted that the
After the answer and counterclaim had been filed, in which it was alleged that the staves and stave material were deteriorating in value, an order was entered upon motion of the plaintiffs, directing the master commissioner to take charge of and sell all attached staves and material on hand that had been cut by plaintiffs and defendants from the 860 trees on the Day tract, which order the master commissioner carried out, realizing from the sale $400.00, which was paid into court. Thereafter the issues with respect to the several items above set out were completed, and'the trial before a jury resulted in a verdict for defendants for the sum of $878.00, and from the judgment entered thereon, plaintiffs have appealed.
Numerous errors are assigned as grounds for reversal, of which, however, we need notice but two, namely: (1) the court erred in admitting incompetent evidence, offered by the defendants, over objections and ex
The contract between the parties, after providing for the manufacture and delivery by defendants to plaintiffs of all of the staves of certain specified dimensions that could be made from 860 marked white oak trees on the Day tract of land on King’s creek, in Letcher county, and for the inspection according to the standard specifications and rules governing the sale and arbitration of white oak staves adopted by the National Coopers Association and approved by the Tight Barrel Manufacturers Association, the inspection to be made by representatives of plaintiffs whenever as many as 25,000 staves were ready for inspection, has the following provision:
“This contract is to include all the staves made from the timber herein referred to and from other timber purchased by first party (defendants) up to the number of
Under this quoted provision, plaintiffs claimed that the defendants obligated themselves to furnish 250,000 whiskey staves and as many oil staves as would be made in making’ that number of whiskey staves, while the defendants claimed this clause means only that they might purchase other timber than that on the Day tract, specified in the contract, and make staves therefrom up to 250.000 whiskey staves and the resulting number of oil staves, but that it did not obligate them to furnish any staves except from the 860 trees on the Day tract and such other trees as they might purchase.
The court, evidently upon the idea that this clause of the contract was ambiguous, admitted extraneous evidence as to its meaning, and submitted to the jury its proper construction. This contract is not, in our judgment, ambiguous, but quite clearly obligated the defendants to manufacture and deliver to the plaintiffs only1 the staves that could be manufactured from the • 860 white oak trees on the Day tract of land, and such other trees as they might purchase, the total number of staves to be received by the plaintiffs not to exceed, however, 250.000 whiskey staves and the resulting oil staves, and the court should have so construed the contract, and] should not have submitted the question of its proper construction to the jury. 'As the evidence shows, without contradiction, that the defendants purchased 40 trees upon other tracts than the Day tract, and that they manufactured and tendered to the plaintiffs the staves from these 40 trees,, and all of the 860 trees on the Day tract except 418, the instruction authorizing a finding of damages for the plaintiffs' for the failure of the defendants to complete the contract should have been confined to the 418 trees on the Day® tract which were not manufatured into staves according to contract.
For the reasons indicated the judgment is reversed, and the cause is remanded for a new trial consistent with this opinion.