Yreka Lum. Co. v. Lystul-Stuveland Lum. Co.

BURNETT, C. J. 1. The findings, so far as they deal with facts, are conclusive upon this court. The only question open with respect to them is whether or not the findings of fact justify the conclusions of law embodied in the judgment. The facts relating to the contract are disclosed by the correspondence, and it is a statement of fact when it is said that the entire negotiations are contained in that correspondence. Since this is true, the court was not justified in reaching conclusions 7, “that defendant before accepting the order of plaintiff expected to receive a list specifying the dimensions of lumber ordered,” and 8, “that defendant did not agree to ship or forward plaintiff the amount of lumber required by said order or any part thereof.” In our judgment, what are called the seventh and eighth findings are but mere conclusions, not justified by the admitted facts of the correspondence. 2. It is a judicial function to construe the writings disclosed by the record, namely, the letters heretofore set forth. The one of March 27, 1917, from plaintiff to the defendant, is an offer to buy 250,000 feet of lumber at $10 per thousand. The one of March 30, 1917, from the defendant to the plaintiff, is a counter offer to sell lumber in the quantity named at $10.50 per thousand. The letter of April 5, 1917, from the plaintiff to the defendant, is an acceptance of the counter offer. 3. At the argument great reliance was placed upon the fact that the letters did not specify the quantity of each dimension of lumber. This matter is treated exhaustively in the opinion of Mr. Chief Justice McBride in Ward v. McKinley, 97 Or. 45 (191 Pac. 322), where practically the same question was involved on this point. It is there held that it was [297] competent to contract for future delivery of lumber, and for the buyer subsequently to select the sizes desired. Something was said, also, relating to the effect of custom. It is permissible as a matter of evidence, without pleading, to explain the meaning of terms used in the contract, under the authority of Section 718, Or. L.: “The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a technical, local, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement shall be construed accordingly.” It is one thing, however, to define the words used in a contract, and quite another to undertake to vary the contract by custom. In the latter case it is necessary that the custom be pleaded. The rule is thus stated in 17 C. J. 516: “Particular customs or usages relating to a particular locality or trade must, however, according to the general rule, be pleaded by the party seeking to make them a basis of recovery or defense, and cannot in the latter case be shown under a general issue or denial. So also a custom introduced as an affirmative defense or for the purpose of recoupment, it seems, should be specially pleaded. Evidence of a custom or usage which may properly be resorted to as an aid to the interpretation of a contract sued on may, according to some authorities, be admitted for such purpose, although it is local or particular and not specially pleaded; but under the guise of interpretation a trade or local custom or usage which has not been pleaded cannot be admitted to defeat a contract or to vary its express terms, and local commercial usages must be pleaded; and so of a custom to excuse the nonperformance of a duty prescribed by law.” [298] 4,5. It is without dispute as the defendant contends, that where a contract is grounded on offer and acceptance there is no agreement until an offer has been made and accepted in its very terms. For instance, in Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225 (4 L. Ed. 556, see, also, Rose’s U. S. Notes), the offer required the acceptance to be sent by a certain tipie and by certain specified means of conveyance. Instead of returning the acceptance by the messenger who took the offer, it was sent by mail to a different place, and it was held not to constitute an acceptance. In Minneapolis etc. Co. v. Columbus Rolling Mill Co., 119 U. S. 149 (30 L. Ed. 376, 7 Sup. Ct. Rep. 168, see, also, Rose’s U. S. Notes), the defendant, answering an inquiry about prices of railway iron, offered to sell from 2,000 to 5,000 tons at a certain price. The plaintiff replied, offering to buy only 1,200 tons; and in an action by the plaintiff to recover damages it was held that, owing to the variation of the amount of rails to be purchased there was no acceptance of the defendant’s offer, and hence no contract. Likewise, in Carr v. Duval, 39 U. S. (14 Pet.) 77, (10 L. Ed. 361, see, also, Rose’s U. S. Notes), a case seeking to enforce the specific performance of a contract to purchase land, the acceptance of the seller’s offer was required to be made by return mail, but the same was not mailed for twenty days. The buyer made an offer to exchange lands and an offer to buy outright, paying a certain portion in cash and securing the remainder by mortgage. There were other matters relating to terms that were left open to future adjustment. Under these circumstances the court declined to enter a decree for specific performance because the offer to sell imposed no obligation until accepted according to its very terms. These [299] precedents cited in the brief of defendant before us are clearly distinguishable from the case in hand. Here, the amount of lumber is specified at 250,000 feet. The kind, “general yard stock,” is designated. The price offered by the plaintiff was declined, and a greater price specified. The contract is closed by the letter of April 5, 1917, which must be construed in connection with the other letters constituting the correspondence, directing the defendant to enter the plaintiff’s order for the precise amount of lumber at the price offered by the defendant. Whether it be the duty of the plaintiff to specify the amount of each dimension, or whether that is in the discretion of the defendant to ship what it chooses of each kind, a failure to comply with the requirement would be a breach of the contract, which is not pleaded. On the issue of whether or not there was a contract, the conclusion of the Circuit Court was not justified by the admitted facts disclosed in the letters. Hence the judgment must be reversed, and the cause remanded for further proceedings. Reversed and Remanded. McBride, Benson and Harris, JJ., concur.