75 Ark. 503 | Ark. | 1905
(after stating the facts.) The first question presented on this appeal is, conceding that appellant violated the second clause of the contract in evidence by purchasing a car load of lumber from a third party which was used by appellant in erecting its building, did this give appellee the right to ignore the terms of the contract as to the price of lumber which he had furnished, and to sue appellant therefor upon quantum meruit? The second clause reads: “It is also agreed that the parties of the first part shall have the bill of any other lumber that the Compress Company may need in the building at the same price, $7.50 per thousand for rough lumber.”
This clause of the contract is wholly independent of the first clause. There is nothing to indicate that it was a part of the inducement for the first clause. There are no reciprocal obligations in it. The Compress Company under it is bound to give appellee the bill of any other lumber it may need in its building at the same price, $7.50 per thousand, but there is nothing in the clause that can be construed as binding appellee to furnish the lumber at the same price, or to furnish it at all. If appellant had called upon appellee to furnish more lumber than that called for in the first clause of the contract at $7.50 per thousand, could appellee have been forced to furnish it? We think not. Could appellant have refused to pay for lumber furnished by appellee under the first clause, because of a failure upon the .part of appellee to have furnished any amount appellant might have needed and demanded under the second clause? Certainly not. It is very clear, from the language used in both clauses, that the _ parties did not intend that the enforcement of the first clause of the contract should be conditioned upon the performance of the second. We are of the opinion that the contract is clearly sever-able, and that the failure of appellant to perform the second clause would.not justify appellee in treating the contract as discharged and rescinded, and suing upon the quantum meruit.
The utmost that could be claimed would be that the breach by appellant would be a partial failure of performance on its part that would give appellee the right to compensation in damages, the amount being the price designated for which the lumber was to be paid by appellant in case any had been furnished: The court erred in treating this as an entire contract, and in not granting appellant’s second request for instruction (which Reporter will set out in note).
For this error the judgment is reversed, and the cause is remanded for new trial.
Appellants’ second request was as follows:
“2. The jury are instructed if they find from the evidence that the Compress Company agreed with the plaintiff to give him a bill for any other lumber that-it might need in the erection of its compress, and which lumber is not specified in the contract, and that the Compress Company failed to furnish the plaintiff with a bill for any or all of the lumber used in the erection of said compress and not specified in the contract, and purchased same from other parties, this will not constitute such a breach of the contract in this case as will entitle the plaintiff to recover the cash market value of the lumber at the time it was delivered.” (Rep.)
