| Ky. Ct. App. | Nov 6, 1914
Opinion of the Court by
Reversing.
Defendant, Langstaff-Qrm Manufacturing Company, purchased of one Bradford a quantity of cypress timber. At the same time it .contracted with plaintiff, J. L. Wilford, to haul, cut and load the timber on board the cars of the Illinois Central Railroad Company at Crice’s Spur, and agreed to pay plaintiff at the rate of $5 a thousand feet. Plaintiff shipped to defendant about 22,600 feet of lumber. Defendant declined to pay plaintiff for the lumber so shipped, and claimed that plaintiff had violated the contract, and refused to permit him to cut and load the remainder of the timber. Plaintiff brought this action to recover damages. Prom a verdict and judgment in his favor for $700, the defendant appeals.
Plaintiff claims, and he and Bradford, from whom the timber was purchased by defendant, testified that the trees were to be cut into 24 and 26 foot logs, where same could be done, but if not, into shorter logs, and that the timber was to be measured at the small or fop
The court instructed the jury as follows:
“1. The court instructs the jury that it is the undisputed evidence of this case, that the Langstaff-Orm Manufacturing Company purchased a certain lot of cypress logs from one Bradford. It is also the undisputed evidence that plaintiff, Wilford, was to cut and deliver the logs on board cars at Crice’s Switch, in Ballard County, at the agreed price of $5.00 per thousand, and if you find from the evidence that said logs were to be measured at the upper end, when the tree was cut, and that said Wilford agreed that he would deliver the trees, after cutting out the hollow butts and all pecky tops, whole or entire, where it could be done, but when said trees could not be delivered whole, then the same was to foe cut in lengths not less than 24 or 26 feet, and you further find from the evidence that said Wilford failed to cut and deliver such trees as he agreed to do, but cut them in shorter lengths, then the defendant has the right, as a matter of law, to decline to receive logs so cut and shipped to it by said Wilford, and the law is for the defendant and you should so find.
“2. The court instructs the jury that if you believe
Instruction No. 2 is complained of by defendant because it was equivalent to a peremptory instruction in that it authorized a recovery by plaintiff if the jury believed from the evidence that under the contract between plaintiff and defendant plaintiff was to be paid by defendant $5.00 for moving and loading on cars all the timber sold defendant by Bradford, a fact about which there was no dispute whatever. Plaintiff, however, insists that the two instructions must be read together, and when so read are not misleading. In this connection it is argued that the contention of the defendant was fairly presented by instruction No. 1, and that if the jury did not find for defendant under that instruction there was nothing for them to do but to find for plaintiff under instruction No. 2. The difficulty with this contention is that instruction No. 2 is in no way qualified. The jury might have disregarded instruction No. 1 entirely, and found for plaintiff under instruction No. 2 on the ground that no other finding was' possible, in view of the fact that they were authorized to make such a finding if they believed that defendant had contracted to pay plaintiff $5 for the services agreed to be performed, a fact which was admitted by both parties. While this court has been very liberal in applying the rule that instructions must be read together and considered as a whole, yet where one of the instructions is manifestly so erroneous that even when considered in connection with other instructions it is calculated to mislead the jury and induce a verdict not- authorized by law, it can be regarded in no other light than as prejudicial. This is not a case of a mere failure to give all the law, but is a case where the instructions given are not correct when considered alone or in connection with other instructions. Therefore defendant is not deprived of the right to object by his failure to offer an instruction covering that particular phase of the casé.
1. It is admitted that the defendant purchased a certain lot of cypress logs from one Bradford, and that it contracted with plaintiff to cut and deliver the logs on board cars at Orice’s Switch, in Ballard County, at the agreed price of $5 a thousand. Now, if you believe from the evidence that under the terms of the contract between plaintiff and defendant plaintiff was to cut the trees into logs 24 and 26 feet in length if this could be done, and if this could not be done he was to cut the trees into logs of shorter lengths, and that plaintiff did so haul, cut and load the timber that was actually shipped to defendant, and was ready, willing and able to comply with his contract with reference to the remainder of the timber, and defendant refused to permit him to comply with his contract, then you will find for plaintiff.
2. On the other hand, if you believe from the terms of the contract plaintiff had agreed to deliver whole or entire trees after cutting out the hollow butts and all pecky tops, where this could be done, but if the trees could not be delivered whole they were to be cut in lengths of not less than 24 or 26 .feet, and that plaintiff failed or refused to so cut and deliver the timber in question, then you will find for the defendant.
3. If you find for plaintiff you will award him the contract price on the timber actually cut and shipped to defendant, less any sum defendant may have paid thereon. On the remainder of the timber you will award him the difference between the contract price and what it would have reasonably cost plaintiff to carry out the contract.