Philip Gruner Lumber Co. v. Algonquin Lumber Co.

Ethridge, J., delivered the opinion of the court. The appellant filed suit in the chancery court against the appellees for the sum of one thousand five hundred thirty-two dollars and eighty-eight cent|s damages for failure to deliver lumber which the- appellee, Algonquin Lumber Company, contracted to deiver to the appellant, and for discovery as to the assets of the Algonquin Lumber Company, which it is alleged was taken over by the other appellees, and for discovery of the amount of capital stock paid in, both in cash and in property. The damage claimed is alleged to be the difference in the contract’ price of lumber bought by the appellant and the market price of the lumber in the market, which the appellant had to buy to secure in lieu of the lumber purchased. The appellant sent its order of date October 15, 1917, to its purchasing agent at Meridian, Miss., for specific lumber marked for immediate shipment. On’ the 17th day of October the appellant, Algonquin Lumber Company, notified -the appellant at St. Louis, Mo., of the acceptance of the order, the agent having — 165 — placed the order with the appellee,, which acceptance contains the following: “ We note that you specify on your order immediate shipment. Our understanding with Mr. Boy, and as stated on our acceptance, shipment was to he made, within reasonable — promised thirty days or shorter. Mr. Boy advises that this would be satisfactory. You understand that we have to cut these timbers. We also note that you show terms as two per cent, ten days after receipt of lumber. Our terms are eighty per cent, less two per cent, from day of shipping papers, or cash less' two per cent, immediately upon arrival of car.” On October 19th appellant answered this letter as follows: “We are in receipt of yours of 17th, which has reference to order 6532, and in reply beg to say that shipment thirty days or sooner will be entirely satisfactory. The terms as outlined in your letter will also be satisfactory.” On November 21st, the appellant sent another order to the Algonquin Lumber Company at Meridian, Miss., which, after, specifying the lumber desired, contained the following: “The above price delivered St. Louis, Mo. Stock must be well manufactured, cut square edge, and sound; stock to be furnished from original growth timber, close grain. Shipment completed in ninety days or sooner, subject to embargoes on cars supplied.” On each of these orders given appellees through Boy, purchasing agent, and both of which were written on the stationery of Algonquin Lumber Company, was the following notation: “All quotations, contracts, and agreements are made contingent upon' accidents, strikes, and other delays unavoidable or beyond our control. These quotations are made subject to immediate acceptance on prior sale.” — 166 — All of the lumber called for 'in these contracts was not shipped, and there is a g-reat deal of correspondence in the record in reference to the matter between the parties. Some of the lumber was. shipped at various times up to the summer of 1918. On January 3, 1918, the Algonquin Lumber Company wrote the appellant, stating their inability to get cars, and stating that tihey had discontinued cutting timbers on the orders, and that it looked like they would be unable to secure equipment for loading the same. Among other things in this letter they say : "However, we may occasionally be able to put over a car, and in such case we will be only too glad to load the timbers we have cut on your orders.” On January 11th the appellant wrote the appellee, among othér things: . "The order which we have placed with you we will expect you to ship at the earliest possible moment.We might say, however, for your information, that we have just received an order for a lot of stock going to the St. Louis Car Company, covered by government order 8772, and you may use this number in ordering to secure equipment, as the timbers which you have coming can be ripped into sizes such as they want. This will help you out, so you will have no further kick coming. ’ ’ The Algonquin Lumber Company on January 17th acknowledged receipt of this letter, and said: “We certainly appreciate your effort in this matter and thank you for giving us this government number. As you say, we have no further kick coming and will endeavor to get this stock moving to you rapidly.”. On February 18, 1918, the Algonquin Lumber Company wrote the appellant that it would be impossible to get any cars in transit without the name of the government receiving officer: "However, just at the present time we are unable to get any shipment through to St. Louis on account of the — 167 — embargo. Your orders will have to be held at present, but will be shipped as soon as possible to get them through. ’ ’ Some lumber was shipped in June, 1918, on this contract, but some trouble arose over demurrage charges, occasioned, it is claimed, by failure of the Algonquin Lumber Company to ship as directed, and a dispute arose between the parties as to who should pay these charges. Considerable correspondence took place; the Algonquin Lumber Company demanding the amount claimed that it was improperly charged with on account of demurrage, and the appellant demanding a. shipment of the lumber under the contract. Finally in December, 1918, the Algonquin Lumber Company wrote the appellant that it would not ship any further lumber under any consideration. There was a judgment for the defendants, dismissing- complainant’s bill, and awarding judgment on the cross-bill of the defendant for eighty-nine dollars and eighty-eight cents; It is undisputed that the lumber called for was not shipped as agreed in the contract, but it is insisted by the’ appellee that it is not liable, because the provision above set out makes time the essence of the contract. It is contended by the appellee that it did all possible to procure cars, and was unable to do so because of the government having taken over the railroads and refusing cars for commercial purposes. The appellee contends that the contract was made con tingent upon strikes, accidents, or other unavoidable delays beyond the control of the appellees, and that, inasmuch as cars could not be procured, it is excused from performance, and that the time embraced in the contract for shipment is of the essence of the contract. The dealing between the parties shows that time was not regarded as the essence of the contract, and, if the language could be so construed on its face, it was waived by the — 168 — subsequent conduct and dealing of tbe parties with respect thereto. In Gannaway v. Toler, 84 So. 129, it was expressly stipulated as follows: “It is mutually agreed by and between the parties-hereto that the time of payment shall be the essence of this contract, and that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators, and assigns of the respective parties.” But the court held, under the facts in that case, that there was a waiver of this clause, by delay in declaring the forfeiture. In the record before us there was no abandonment of the contract by the appellee, nor any effort to terminate because of the conditions until after the Armistice, and there was no effort to ship the timbers for some months prior thereto, and we think the defendants were not excused from performing their contract. Another question presented in the record and in the argument is the power of the agent, Boy, to bind the appellant company , by his agreement, upon which the appellee strongly relies. The testimony of the president of the appellant company, and that of the agent, shows that the agent’s authority was limited to purchasing lumber subject to the approval of the company. There is no sufficient proof that he was a general agent, which would overturn this proof by the parties to the contract of agency between Boy and the appellant company. Indeed, the record shows that the order of October 15th was acknowledged by the Algonquin Lumber Company in a letter to the company, aiid its counter terms accepted by the president of the company, acting for the company in St. Louis. It is familiar learning that a person dealing with the agent of another must know the limitations of authority upon the power of the agent, and where he has no authority to make an agreement, in the absence of elements of estoppel, such agreements do not bind the — 169 — principal. From a careful consideration of the record, we think the chancellor erred in dismissing the complainant’s bill. The judgment of the chancery court is therefore reversed, and the cause remanded. jReversed and remanded.