Pineville Lumber Co. v. Thompson

Gilfillan, C. J. January 12, 1889, the parties entered into a written contract, whereby the plaintiff sold to defendants 100,000-feet of oak lumber, to be sawed by plaintiff. The contract contained these clauses: “The said Pineville Lumber Co. agree to commence sawing the above lumber as soon as they start their mill in the spring. They further agree to pile this lumber in their yard, and ship it when ordered, and further agree that they will pile all the red oak that they saw that will make and does make any of the above503 described dimensions, in piles exclusively for said R. B. Thompson & Co., and will hold them until ordered shipped by saidB. B. Thompson & Co. The price of said lumber is to be $19.25 per M., f. o. b. cars in Minneapolis, and to be paid for as follows, viz.: Eight hundred dollars this day; four hundred dollars more when the 100,000 feet is in pile; and the balance on the first day of January next, or, in case said lumber is ordered shipped prior to that time, it shall be paid for as soon as received at Minneapolis, unloaded and scaled. The said lumber is to be in pile on or before the first day of January next.” Between May 15 and June 19, 1889, the plaintiff sawed and shipped to defendants, on their order, 69,195 feet of the lumber, which was received by defendants at Minneapolis, and unloaded and scaled. June 27th, plaintiff demanded from defendants pay for the amount so delivered, less what had been paid at the making of the contract, and defendants refused; the plaintiff claiming that under the contract it was entitled to be paid as, from time to time, the lumber was, on defendants’ order, shipped to and received at Minneapolis, and unloaded and scaled, and the defendants claiming that the price was payable only upon the delivery of the entire 100,000 feet. The construction of the contract in this respect is the only question presented on this appeal. If the contract had provided that the lumber should be shipped to defendants only when the entire lot was ready to be shipped, and upon an order for the shipment of the entire lot at one time, — in other words, had it provided for but one delivery, — then the inference would have been that there was to be but one payment, to be made when the delivery was completed. But, although the contract is far from being clear on the point, we think, taking into account the character of the property and all the provisions of the contract together, the parties contemplated that the defendants might order shipments from time to time as the lumber should be ready for shipping and the defendants should desire it shipped, and that until ordered shipped it should remain in piles in the plaintiff’s yard for defendants until at any time prior to January 1, 1890, they should order any of it shipped. That being so, the clause, “it shall be paid for as soon as received at Minneapolis, and unloaded and scaled,” 504 refers not to the entire quantity, but to the shipments made upon the defendants’ orders. Unless we were to hold that the defendants could not order shipped any but the entire lot after it was sawed, a construction as to payment, to the effect that none was to be made till all the lumber was received, would enable defendants to secure a delivery, as soon as sawed, of all but a small portion, and, by delaying the order for that portion, postpone the payment for what they had received and used till January 1,1890. Of course, it was competent for the parties to agree upon that apparently inequitable advantage to defendants, but the court would not so construe their contract, if it were equally open to a construction that would avoid that result. We think the contract contemplated payments (after deducting what had already been paid) as deliveries were from time to time made on defendants’ orders. Order reversed.