T. Wilce Co. v. Kelley Shingle Co.

Grant, J. (after stating the facts). While there-are 49 assignments of error, the questions upon which the-right of recovery turns are but few, and depend almost entirely upon the construction to be placed upon the contract. 1. It is contended by counsel for the defendant that by the contract plaintiff was bound to manufacture the lumber at its mill, while plaintiff insists that it was at liberty to obtain the lumber where it chose, so long as it was of the character and kind specified in the contract. The contract contains no language indicating a contract to-manufacture the lumber at the plaintiff’s mill. Plaintiff’s contract was to furnish to the defendant 4,000,000 feet of' lumber. To “furnish” does not mean to manufacture. It is a fair construction, from the use of the word, that plaintiff desired to guard against many contingencies that might arise if it agreed to manufacture the lumber at its-own mill. The mill might burn, other accidents might happen, or other things occur which would render it impossible for plaintiff to execute the contract. If it contracted to manufacture without guarding against such contingencies, it would be bound by its contract to do so. The contract is too plain to require construction. Plaintiff had the right under it to manufacture or buy the lumber for the defendant. Its contract was to furnish, not to manufacture. 2. It is next contended that the plaintiff was under-obligation to cross-pile all the lumber in its yard, to do this by Sfeptember 1st, and that defendant was under no-obligation to accept or ship any of the lumber until after325 that date, and it was all piled in the yard ready for shipment. We are of the opinion that this construction should not be placed upon the contract, and that the defendant obligated itself to accept and have the lumber shipped in vessel lots as soon as sufficient had been piled for that purpose for 60 days. The capacity of plaintiff’s mill was 100,000 feet per day. The capacity of its yard in the vicinity of its mill was about 4,000,000 feet. But 5,000,-000 could be piled upon its grounds by moving lumber a half a mile. The capacity of the mill for this season would have been over 20,000,000 feet. Defendant knew that plaintiff was manufacturing other lumber in large ■quantities. The letters and conduct of both parties show that the contract was so understood. 3. It is next urged that if this contract was divisible, and defendant was bound to accept it in cargo lots, each cargo should contain proportionate quantities of each kind of lumber. Counsel cite Crowl v. Goodenberger, 112 Mich. 683 (71 N. W. 485), as sustaining this contention. If this were an indivisible contract, and plaintiff had bound itself to furnish the entire amount before any was shipped, ■that case would apply and be controlling. In that case it was held that the defendant was “bound to tender the whole amount of the lumber, as plaintiff was not bound to accept a part only.” In this case, as above stated, defendant was bound to accept it in parts. Plaintiff would have performed its contract by furnishing the proper quantities of the various kinds before the time fixed for its completion. If defendant had directed the proportions to be furnished for each cargo, a different question would be presented. 4. It is next contended that it was the duty of the plaintiff to have all the lumber cross-piled and ready for shipment on September 1st, notwithstanding that the defendant had asked not to have the lumber shipped as provided, and had requested plaintiff to consent to delay. We cannot concur in this view. On account of the dullness of the market, and probably the fall in price, defend [326] ant asked forbearance on the part of the plaintiff in holding it to shipments as the contract required. This was evidently granted. It undoubtedly changed the obligation of each party to the contract. Defendant obtained a waiver of the time for shipment, which was made definite-by the contract. Under this modification it would have a reasonable time in which to ship. It must follow that the contract was also modified in regard to the time of furnishing. Defendant had delayed shipping for three months, and now seeks to repudiate the contract because on September 1st plaintiff did not have the entire amount on hand to ship. Under plaintiff’s testimony, it could have furnished the balance of the lumber in a very short time, and not have delayed the defendant in the shipment of it, even if it could have shipped the entire amount between September 1st and November 1st, — a matter of considerable doubt under the evidence. 5. Upon the trial counsel for defendant conceded the-rule of damages applicable to the case to be the difference between the market and the contract price. Thus by the-consent of both parties the case was submitted to the jury upon that theory. Counsel made a motion for a new trial, alleging as an error that this direction did not state the correct rule of law as applicable to the lumber which-plaintiff did not have on hand at the time of the breach of the contract, and which it would have been compelled to obtain by purchase, but that the rule would be the differerence between the contract price and the cost of purchasing and delivering the same in its yard at Empire. The-court refused the motion. We do not think that, where the question was submitted to the jury by the consent of both parties as to the rule of law, the winning party should be put to the expense of a new trial, even if the direction were wrong, upon which we express no opinion. We concur in the conclusion of the court below in refusing a new trial. Judgment affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.