113 Wash. 593 | Wash. | 1921
On April 27, 1917, after Congress had declared a state of war to exist between this country and the German. Empire, appellant contracted to sell and deliver twenty car loads of clear fir lumber to respondent at certain specified prices. No definite time for the delivery was fixed, but it was agreed that appellant should ship as promptly as the items called for by the order could reasonably be produced from the logs coming into its mill to be cut. During the
“I told Conner that was the only clear order we had and asked if it could not be released. He said no, he would have to hold it up.”
The witness says that the order was never returned to him or his company, and he has never seen it since, and so far as we have been able to discover from the record, no further inquiry was made and no other or further attempt was ever made to secure a release of this order or any part of it. Later other circulars were issued by governmental authority, stating definitely and in detail how ápplications for releases should be made, but appellant seems to have made no effort to comply with such instructions, although it was stated therein:
“It is the intention to release from embargo promptly any lumber not required by the government.”
The government was interested principally in procuring lumber for airplane stock, of which appellant’s mill produced none during the whole period of the war, except possibly a little which was held for a time with the thought that enough might be accumulated to
This action was brought to recover the damage which respondent claims to have suffered by reason of appellant’s failure to fill its order, and the consequent necessity of buying elsewhere at enhanced prices. The action was tried to the court, resulting in judgment against appellant for $3,477.43, from which it appeals. Respondent cross-appeals, claiming to be entitled to a larger recovery. Other material facts will appear as we proceed.
The trial court found, among other things, as follows :
“The court further finds that, at the time of making-said sale contract, the United States had previously declared war against Germany, of which fact both parties to said contract had knowledge, and that it was or should have been within the contemplation of the parties when said contract was made that in the prosecution of said war the United States Government might interfere with the filling of said order within the time it would otherwise have been filled, and the defendant refused to agree to deliver said lumber Avithin any specified time, and that under the said circumstances the defendant had a reasonable time, all circumstances considered, Avithin which, to make delivery.
*596 “The court further finds that, through the acts of the Government, acting through the power vested by the laws of the United States in the President and through the agencies by which said power was administered and exercised, delivery of the lumber under said contract was to some extent hindered and delayed, but that delivery thereof was not rendered .impossible, nor were conditions thereby changed to such an extent as to relieve the defendant from its obligation to furnish the lumber under said contract. The court finds that the Government did not at any time make delivery of the said lumber under said contract illegal, and that while the Government regulations were in force from December, 1917, until in November, 1918, the defendant was engaged chiefly in cutting lumber of a grade and quality inferior to and not suitable for that required to be delivered under said contract. That the lumber so cut was cut through choice of the defendant; that logs of a quality to cut therefrom clear lumber, grading No. 2 clear and better, were in the market, available to the defendant during said period, but that if defendant had, during said period, cut lumber grading No. 2 clear and better to furnish to the Government in fulfillment of its requirements, that by reason of the specifications of the Government requirements the defendant could have filled said order from lumber rejected by the Government as not suitable for its requirements. ’ ’
We have carefully examined the somewhat voluminous record and are of the opinion that appellant has failed to establish that it exercised diligence and good faith in endeavoring to obtain such a release or releases from the lumber embargo as to permit it to fill this order, and in our judgment the evidence fully sustains the findings of the trial court as above quoted.
The appellant argues that the regulations made by the government were of such a character and probable duration as to materially alter-the contract from what it was when entered into, and that, therefore, ap
Respondent, upon its cross-appeal, complains that the trial court did not find that the average car load of this lumber would have been approximately 22,000 feet, and, while adopting the minimum capacity of 16,300 feet in determining the extent of appellant’s default, yet credited thereon the excess over this minimum contained in the six cars which were shipped. The written order requires all cars to be loaded to their minimum capacity, and as appellant was not bound to go beyond that, and as we cannot determine that it would not have secured small cars whose minimum capacity was 16,300 feet for its entire unmade shipments if made, we cannot disturb that part of the trial court’s findings. The order calls for ten car loads of $18 material; seven car loads of $20 material, and three car loads of mixed material running
The judgment is affirmed.
Holcomb, C. J., Mount, Mitchell, and Main, JJ., concur.