Holt v. Pie

Opinion, Mr. Justice Williams: The objection to the admission of the copy of the account of the Sargeant Lumber Company against Pie, as evidence in this action brought by Pie against Holt, was well taken. The action was brought by Pie to recover for lumber delivered to Holt under a contract. It was necessary to prove the quantity of the lumber so delivered, and for this purpose an account kept by the Sargeant Lumber Company, showing the quantity of lumber furnished by the company to Pie, was offered and received. If the same carloads of lumber were sent to Holt from [439] the yard of the lumber company, still we do not see how this account was admissible as an instrument of evidence. It might serve as a memorandum to aid the memory of the men who put the lumber upon the cars or shipped it to Holt, but as an account of the lumber company it was inadmissible in this action. The assignments from the sixth to the tenth, inclusive, relate to the instructions of the court upon the effect of the letters which formed the only written evidence of the contract. They are three in number. The first, written ou July 6, 1881, begins thus:— “ Confirming our verbal contract of some days ago you will please enter the following order of good, sound hemlock lumber, in all one million feet.” Then follows the order giving a list of sizes, lengths, etc., and at the end of the letter occurs these words : “ Price on the cars for the worked hemlock, $8; for the 4-4 and 5-4, $7.50 on the cars. To be sawed and piled on the yard after the 2-ineh is out of the way, and shipped when directed. Please acknowledge receipt of this and oblige, Yours truly, “D. W. Holt.” The second is also from Holt, dated July 16,1881, and modifies the sizes of a part of the bill. The third bears the same date, and is as follows : “ Dear Sir : In answer to yours of the 16th inst., I accept the modified bill of lumber, and I will go right ahead and cut said bill as fast as possible. Respectfully, “ Pie & Gaunter.” So far as this order and acceptance express terms, they constitute the contract between the parties. They fix the amount of lumber to be furnished; the sizes into which it is to be cut; the kind of finish, and the price on the cars. But the order refers to a “ verbal agreement of some days ago,” and professes to be in confirmation of it. It does not profess to recite that agreement, or be a substitute for it, but to confirm, or conform to it. The offer to prove what that verbal contract was, as to any omitted terms or stipulations, was not, therefore, an effort to change the terms of a written agreement, but to show the whole agreement of which the letters were but part. This the court refused permission to do unless it was first [440] shown that the stipulations not found in the letters were omitted by fraud, accident, or mistake. But this was not alleged. The letters consist of Holt’s order, telling what lumber he wanted, and at what price, and of Pie’s acceptance of the order and promise to cut the lumber as soon as possible. So far the verbal agreement was reduced to writing, or “ confirmed ; ” but whatever else there was of the agreement the jury had a right to know.. The offer was not to alter the agreement contained in the letters, but to prove the actual contract in conformity with which the letters had been written, so that the jury might understand what it was as to such subjects as were not within the range or purview of the order and acceptance. The remaining assignments of error are to that portion of the charge which relates to the inspection of the lumber. The order was silent upon this subject, but it called for “ good, sound hemlock ” at a fixed price on the cars ; to be “ shipped when directed.” This clearly contemplated a shipment by Pie to such place and at such time as Holt should direct. If, when the lumber reached its destination, wherever that might be, it was not “ good, sound hemlock,” such as Holt ordered and Pie agreed to furnish, to that extent the performance of the contract was defective. Holt was not under obligation to accept any quality of lumber except that for which he had contracted, and he had a right to decline to pay for lower grades. It was error, therefore, to hold that the order or letter of July 6th and its acceptance provided for an inspection at the point of shipment. The undertaking of Pie was to ship when directed good, sound hemlock. If he did not do this, Holt was at liberty to refuse to receive the lumber. He was bound to pay for what he ordered, but he was not bound to pay for any other quality or kind of lumber. For the reasons thus indicated, The judgment is reversed, and a venire facias de novo awarded.