161 Ky. 98 | Ky. Ct. App. | 1914
Opinion of the Court by
— Affirming in part and reversing in part.
In this action for damages for breach of a logging contract, plaintiffs, A. B. and D. B. Cornett, recovered of defendant, Swann-Day Lumber Company, a verdict and judgment for $400. Defendant appeals.
Tbe contract out of wbicb the action grows is dated October 18, 1909. By its terms plaintiffs sold the defendant from thiee to five thousand poplar, ash and cu cumber saw logs. The logs were to be cut into lengths of 10, 12, 14 and 16 feet. The logs were to be graded in first and second class logs. First class logs were to be 18 inches and up in diameter. Second class logs were to be from 14 inches to 17 inches, inclusive, in diameter. The price to be paid for first class logs was $14 a thousand feet, and for second class logs $10 a thousand feet. All the logs mentioned in the contract were to be painted by plaintiffs on both ends with white paint. The contract further provided that the logs were to be branded with a private log brand of plaintiffs. The first measurement under the contract was to take place in the month of November, 1909, and the last measurement during the month of March, 1910. The logs were to be placed on good floating streams of water or on good splash dams.
Defendant is a corporation, with its principal place of business in Clay City in Powell County. Floyd Day is its president. Plaintiffs reside in Harlan County. Prior to the execution of the contract D. B. Cornett called on defendant’s president in Clay City. The terms of the contract were discussed by them, and the contract in question drawn up by Floyd Day. The contract was then mailed to A. B. Cornett in Harlan County. The contract was in duplicate. A. B. Cornett signed the contract for himself and son and mailed a copy to defendant. The number of logs sold by plaintiffs is stated in the contract as follows: “From three thousand to five thousand (3,000 to 5,000) poplar, ash and cucumber saw logs.” At the time of signing the contract, A. B. Cornett changed the figure “3” in 3,000 to “2.”
According to the evidence for plaintiffs, defendant failed during the month of March, or at any time thereafter, to measure and brand 586 logs, which lay out from March until the following January, and by reason of this fact the loss by way of cracking, shrinkage and sap rot was about 25 per cent. In addition to this item, there were 53 logs which were lost because they were not branded. These logs averaged about 200 feet to the log, and at the average price were worth about $127.20. The evidence for the defendant is that the loss by way of shrinkage on the 586 logs did not exceed 10 or 15 per cent of their value. About 2,000 logs were accepted and paid for under the contract, and these averaged about $2.05 to the log. Averaging the 586 logs on the same basis, their value was about $1,201.30. The shrinkage, therefore, on these logs, was about $120.13, or at most not over $180.19. Averaging the 53 logs lost on the basis of $2.05 each, the average price of those delivered, the los's did not exceed $108.65.
The first ground urged for reversal is that the Harlan Circuit Court was without jurisdiction. The suit was brought in Harlan County, and the process served on defendant’s president in Powell County. Defendant raised the question of jurisdiction both by special demurrer, and by answer in the nature of a plea in abatement. Under our Code, an action upon a contract against a corporation having an office or place of business in this State or chief officer or agent residing in this State, may
“It is further understood and agreed that the party of the first part shall place on each of all the logs furnished under this contract its private log brand, made thus: C with a hammer brand. ’ ’
So much of the judgment as awards a recovery of $276.40 for depreciation in the value of the 586 logs is affirmed. That part adjudging a recovery for $123.60 on account of the 53 logs that were lost is reversed for a new trial consistent with this opinion.