Thornton-Claney Lumber Co. v. J. M. O'Quin & Sons

76 So. 732 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

J. M. O’Quin & Sons, appellees, were lumber manufacturers and dealers, and the Thornton-Claney Lumber Company was a corporation doing business at Chicago, 111., and engaged in the buying and selling of lumber. The agent of the Thornton-Claney Company went to the appellees to buy about two hundred fifty, thousand feet of lumber then on the yard of appellees. An order was written out and signed by the agent of appellant and the appellees, but the order was signed immediately before the arrival of a train, and the appellees claimed not to have read the order, but signed it hastily so the agent of appellant could catch the train. They claim that when the copy of the order was returned to them, about a week after the signing, that it did not contain the agreement as actually agreed upon, and they refused to ship - the lumber. The appellant claims to have bought the lumber at nine dollars per thousand, and testified that the order was written as agreed, and was returned the following day. The appellees refusing to deliver the lumber, appellant filed a bill in the chancery court alleging the contract, and making the order signed by O ’Quin & Sons an exhibit thereto, alleged the buying of the lumber, and that because of the peculiar facts, and of the various grades of lumber included in the order, there should be an accounting, and prayed for an injunction against the sale of the lumber by appellee, and an injunction writ was issued. A demurrer was filed to the bill and sustained by the court, from which an appeal was taken to this court, and the decree affirmed here. There was no motion to dissolve the injunction.

After the decree was affirmed here, appellees, 0 ’Quin ;& Sons, filed a suggestion of damages in the chancery court, but the appellant refused to appear for some time thereafter, on the theory that the chancery court had no jurisdiction of the cause, but finally an agreement was entered into in-which it was provided that the Thornton-Claney Company could propound their claim for damages for breach of the contract, and the defendants, O’Quin & Sons, could file their claim for damages for the wrongful suing out of the injunction. Thereupon the chancery court took jurisdiction of the cause, and, after hearing evidence, held that the order signed by O’Quin & Sons was of no effect and void, and then awarded damages for the suing out of the injunction, in which it allowed three hundred dollars, as attorney’s fee; ninety-four dollars, for extra expense of moving forty-seven thousand, four hundred and twenty-two feet of lumber, at two dollars per thousand; seven dollars and fifty cents per thousand for forty-three thousand, one hundred and sixty-nine feet of lumber on which there was a total loss; and eight dollars and sixty-five' cents per thousand for seventeen thousand, one hundred and two feet, total loss — making a total of nine hundred and fifty-one dollars. From this decree the Thornton-Claney Company appeals here.

On the trial the evidence as to attorney’s fees showed that one hundre’d dollars was a reasonable fee for the original hearing on the demurrer in the court below; and that seventy-five, dollars was a reasonable fee for prosecuting the appeal here. The court also allowed one hundred dollars for feeding oxen for a reasonable time after suing out the injunction, and also allowed one hundred and twenty-five dollars attorney’s fee in the.present.suit.

It seems there were approximately two hundred and fifty thousand feet of lumber on hand at the time the injunction was sued out, and that two hundred and twenty-five thousand feet of this lumber was contracted to be sold to another party by appellee, at ten dollars and fifty cents per thousand, but because of tbe suing out of the injunction, delivery was not made. The injunction was sued out in 1912, and in 1913 the lumber advanced about five dollars per thousand over the price in 1912. After the appeal was taken to the supreme court, there was an effort made by appellant here to have O’Quin & Sons agree to a sale of the lumber as it then stood, at the market price, and have the litigation continue so as to settle the rights of the parties as to who was entitled to the proceeds of the lumber. This 0 ’Quin & Sons refused to do. The suit was finally affirmed in the supreme court in 1915. It appears that a considerable amount of lumber on the yard was sold in 1915 and 1916 after the affirmance in the supreme court, and that some of the lumber on the yard could be worked over at an expense of one dollar and fifty cents per thousand, and then marketed at an advance of about five dollars over the price in 1912. The appellant claims the court, in assessing the damages, refused to allow the increased value of the lumber caused by the advance of the market, while charging the appellants with the damage to the lumber on the yard and for the value of the lumber that was no good, or a total loss, and that this value, if allowed, would reduce the judgment to the extent of three hundred and forty-two dollars. The chancellor, in his decree, does not enter into a specific finding of fact, but it does not appear that he made allowance for the increased value of the lumber. It rather appears, on the contrary, that he failed to make allowance for this increase in the value of the lumber that was sold.

We think the measure of damages in this case would be the amount of attorney’s fees expended in' the first suit, the amount appearing to be one hundred and seventy-five dollars, but no allowance should be made for services in the present suit, as it has arisen subsequent to the dissolution of the injunction, and then the damage, after allowing'' attorney’s fees, would be the difference in the value of the lumber at the time of the suing out of the injunction and its value at the period of dissolution, with interest on the difference from the date of the suing out of the injunction. This rule is announced in Rubon v. Stephan, 25 Miss. 253.

The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.