McKinney v. . Matthews

AlleN, J. The contract of the plaintiff is to sell the timber on certain land, to be paid for at the rate of $2 per thousand feet of lumber, and the evidence of the plaintiff is directed to proof of the quantity of lumber cut. There is a well marked distinction between the terms “timber” and “lumber.” “The word Timber’ has an enlarged or restricted sense, according to the connection in which it is employed. It may refer- to standing trees or to stems or trunks of trees cut and shaped for use in the erection of buildings or other structures, and not manufactured into lumber within the ordinary meaning of thé word ‘lumber.’ It does not ordinarily refer to the articles manufactured therefrom, such as shingles, laths, fence rails, or railroad ties. Lumber is timber sawed or split *580 for -use in building, tliat is, tbe manufactured product of logs.” 25 Oyc., 1545. “Slabs are not included witbin a statute giving a lien on tbe lumber and timber’ for services in cutting logs.” Engi v. Hardell, 123 Wis., 407. It follows, therefore, as tbe purchase price is determined under tbe contract by tbe measurement' of tbe lumber cut, tbe manufactured article, it was error to charge tbe jury that tbe plaintiff was entitled to recover for tbe whole log, including tbe sawdust cut out by tbe saws and tbe slabs. If, however, tbe parties bad not agreed that tbe purchase price should be determined by tbe measurement of lumber, tbe instruction would still be erroneous, as it was competent to prove tbe custom and tbe standard ordinarily prevailing under such contracts, and that this was not in accordance with tbe contention of tbe plaintiff. 25 Cyc., 1560; Hardison v. Lumber Co., 136 N. C., 174. It was also erroneous to instruct tbe jury that there was no consideration for tbe agreement between tbe defendant and tbe plaintiff, made subsequent to tbe original' contract, to take the invoices of tbe sales of tbe lumber as tbe means of determining tbe quantity of lumber cut. . Tbe evidence of this agreement is not objectionable as varying a written contract by parol, as tbe agreement testified to was subsequent to tbe original contract. Harris v. Murphy, 119 N. C., 34; Freeman v. Bell, 150 N. C., 148. In tbe last case cited tbe Court says: “It is well settled that tbe rale that parol evidence will not be admitted to contradict or modify a written contract does, not apply where tbe modification takes place after tbe execution of tbe contract,” citing Adams v. Battle, 125 N. C., 153; Harris v. Murphey, 119 N. C., 34. Nor is tbe agreement without consideration to support it. Adams v. Battle, 125 N. C., 158; Lipschultz v. Weatherly, 140 N. C., 368; Institute v. Mebane, 165 N. C., 650. In tbe last of these cases it was held that a valuable consideration may consist either in some right, interest, or benefit accruing to tbe one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by tbe other, and *581 that a waiver of any legal right at the request of any party is a sufficient consideration for a promise, and in the Lipschultz case it is said by the Court: “It is well settled that a contract may be discharged by an express agreement that it shall no longer bind either party. This is usually and correctly termed a rescission. It is equally well settled that such an agreement to operate as a discharge must be supported by a valuable consideration, which may be either a payment'in money, something of value, or by a release of mutual obligations arising out of the contract. In Brown v. Lumber Co., 117 N. C., 287, it is said: ‘When the contract is wholly executory,, a mere agreement between the parties that it shall no longer bind them is valid, for the discharge of each by the other from his liabilities under the contract is a sufficient consideration for the promise of the other to forego his rights. ... If a contract has been executed on one side, an agreement that it shall no longer be binding, without more, is void for want of a consideration. Clark on Contracts, 418. Of the several methods by which a contract may be discharged, one is by substitution of a new contract, the terms of which differ from the original. In such cases release of the obligations of the old and the substitution of new obligations constitute valuable considerations.’ ‘It is also now well settled that ordinarily a written contract, before breach, may be varied by a subsequent oral agreement, made on a sufficient consideration, as to the terms of it which are to be observed in the future. Such a subsequent oral agreement may enlarge the time of performance, or may vary other terms of the contract, or may waive and discharge it altogether.’ Hastings v. Lovejoy, 140 Mass., 261. In McCreery v. Levy, 119 N. Y., Andrews, J., says: ‘The agreement annulling the prior contracts is supported by an adequate consideration. The new obligation which G. assumed under the contract of 25 October, 1882, was alone a sufficient consideration. There was a consideration also in the mutual agreement of the parties to the prior contract which was still executory, although in the .course of performance, to discharge each other from reciprocal obligations thereunder and to substitute a new and different agreement in place thereof.’ ” *582 The mutual agreement and promise of the parties to settle by the lumber tallies of the house to which the lumber was shipped, the mutual surrender of rights under the original contract, and a waiver of the right to keep accurate accounts of the timber cut and of the lumber shipped furnish a sufficient consideration under these authorities. In Porter v. Bridgers, 132 N. C., 93, evidence of an agreement of the same character as that introduced in this case was received and acted upon, and while the fact is not clearly stated, the agreement relied on must have been subsequent to the original contract as it was made between the plaintiff, a party to the original contract, and the defendant, who was not a party to, but an assignee of, the original contract. The evidence of the agreement was competent for another purpose, although not supported by a valuable consideration, and that is as explanatory of the failure of the defendant to keep accurate accounts as the timber was cut, and its effect for this purpose was destroyed by the charge. If, as his Honor charged, it was competent for the jury to consider the failure of the defendant to keep accounts of the timber cut as a circumstance against him, surely it was competent for him to say that he did not keep the accounts because it was unnecessary to do so under his agreement with the plaintiff to settle by the tallies. For the errors pointed out a new trial is ordered. New trial.