Muse v. Eastham

McCulloch, C. J. Appellee sued appellant on account for the sum of $297. The account grew out of a contract between the parties whereby appellant furnished logs to appellee at the latter’s saw mill for a certain stipulated price, and appellee sold and delivered the lumber output of the mill to appellant at a stipulated price. According to the testimony adduced by appellee, the lumber was delivered on board of cars at the mill, consigned by bill of lading to appellant, according to appellant’s orders, to its designated consignee. Of this disputed account the sum of $197 was for deductions made for culls at the point of destination of the first cars shipped. The remainder of the account was for deduction of 2 per centum on all the bills claimed by appellant in accordance with an alleged custom of the lumber trade. Appellee testified that when he was ready to ship the first cars appellant instructed him to inspect the lumber himself and that appellant would accept his grading. Appellant denied that he agreed to accept appellee’s inspection and offered to prove that it was customary in the lumber trade to charge back for culls rejected at the destination of the shipment. The court excluded the testimony as to custom of the trade. There was no proof adduced by appellant showing that the culls were rightfully rejected, but he contented himself with proof that his vendee had made a return of the rejections. Appellant also offered to prove a custom of the trade to deduct 2 per centum on payment of bills within ten days. The court excluded the-testimony. There was a contract between the parties, but it is not in the record as abstracted, and we must assume that the contract fixed the rights of the parties with respect to inspections at the place of delivery, and as to the price and terms of the sales of lumber. If so, those features of the contract could not be varied by proof of trade customs. Cook v. Hawkins, 54 Ark. 423; Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400. If there was any ambiguity in the written contract, it does not appear in the abstracts of the record. Judgment affirmed.