87 So. 241 | La. | 1921
This is an action for damages for an alleged breach of contract on the part of defendant to sell and deliver to plaintiff 1,000,000 feet of lumber. Plaintiff alleges that, after delivering 115,665 feet of the lumber, defendant failed and refused to deliver more;' and that he (plaintiff) would have made a profit of $5.40 per M. feet, or $4,775.-40, on the remaining 884,335 feet of lumber, if defendant had delivered it. Defendant denies that he violated the contract; and he avers that plaintiff would have suffered a loss on the lumber at the prices stipulated, and that he (plaintiff) violated the contract by failing to pay for the lumber delivered, at the time and place stipulated, and thereby prevented defendant’s paying his employes promptly, causing them to quit work and to put an end to defendant’s sawmill business, at a loss of $4,500. He prayed for a rejection of plaintiff’s demand and for damages in the sum of $4,500. The district court rendered a judgment of nonsuit against plaintiff, and rejected defendant’s reconventional demand. Plaintiff has appealed, and defendant, answering the appeal, prays that his reconventional demand be allowed.
The following is a copy of the contract:
“Know all men by these presents, that we, S. T. Anders, of Webster parish, La., hereinafter known as the party of the first part, and D. W. Smith, also of Webster parish, La., and hereinafter known as the party of the second part, have entered into the following contract:
“The party of the first part has sold, and does by this contract bind and obligate himself, his heirs and assigns, to sell and deliver, to the party of the second part, his heirs or assigns, one million feet of pine lumber (representing lumber to be cut from timber of the Ward tract and eighty acres formerly belonging to Long Beach Lumber Company), at the following prices, to be paid f. o. b. cars at McIntyre Station on the L. & A. By.:
“Grades Nos. 1 and 2, $8,00 per M.
“B and better, 6 inches and wider, $16.00 per M.
“Less two per cent.
“All lumber to be well manufactured, trimmed and edged, and to be cut in lengths and thicknesses as per the written orders of the party of the second part delivered to the party of the first part, or his foreman or agent.
“Said lumber is to be dressed and worked in any patterns or dimensions, or delivered on cars rough, as per written instructions of the party of the second part.
“All lumber to be carried in stock until shipping dry, unless the party of the second part gives written instructions for it, or part of it, to be shipped before it is dry.
“Said party of the first part binds and obligates himself to cut and deliver the million feet, as per this contract, within twelve months from this date, provided the party of the second part complies with his part of the contract.
“Party of the first part binds and obligates himself, his heirs and assigns, not to sell any lumber cut on his mill better than No. 2 grade, until the million feet herein sold is cut and'delivered, unless he has the written consent to do so from the party of the second part, his heirs and assigns.
“Done and signed in duplicate this second day of June, 1915.
“[Signed] S. T. Anders.
“D. W. Smith.
“Witnesses: [Signed] A. D. Turner.”
Plaintiff did not allege in his petition that he had ever given orders or instructions, either written or verbal, as to the dimensions
Defendant does not ask, in his answer to plaintiff’s appeal, that the judgment of non-suit against plaintiff should be amended so as to reject his demand finally. The only ■ amendment prayed for is that defendant’s re-conventional demand should be allowed. Our conclusion is that the evidence does not support the demand. It is very doubtful that defendant would have made a profit if he had fulfilled the contract. His calculation in that respect is based upon unreasonably low figures with regard to the cost of manufacturing the lumber and delivering it to the railroad switch.
The judgment appealed from is affirmed at appellant’s cost.