Gilmore Puckett Co. v. Glenn

Ethridge, J., delivered the opinion of the court. The appellee brought suit against the appellant for certain lumber claimed to have been delivered by Glenn upon a public highway under contract providing as follows: “You may enter our order for fifty thousand feet of two-inch pine cut in dimensions of 2x4 to 2x12 at fifteen-dollars per thousand, delivered on Pike Road about one-half mile east of Leverett’s milk One car of one-inch board about sixteen thousand feet at eighteen dollars, delivered — 131 — on Pike. Stock to be delivered when dry. Terms cash less two per cent. In consideration of this sale the Gilmore Puckett 'Company has advanced me two hundred fifty dollars, the receipt of which is hereby acknowledged and I agree to let the proceeds of the lumber go towards paying the two hundred fifty dollars advanced.” The lumber called for by this contract according to the plaintiff’s testimony was delivered upon the Pike Road at the designated point. That is to say, the lumber was placed upon the Pike Road at the designated point. The appellant had the lumber trucked from the point on the Pike to their yards at Amory, Miss. There was a difference between the plaintiff’s testimony as to what was delivered on the Pike Road and the defendant’s testimony as to what was received at its yards in Amory. The appellant, the defendant, rendered certain statements from time to time to the plaintiff, the appellee, and paid money according to its statement. Subsequent to the execution of the contract set out above, there was a letter addressed to plaintiff by the appellant, defendant, in the following language: “Mr. J. L. Glenn, Quincy,, Mississippi — Dear Sir: We are in position to haul the rest of your lumber now and if you can get it out to the road would like to move it while the roads are dry. And if your stock is not as dry as you would like for it to be send it on anyway. It would help you up on price some to offset the extra cost of hauling. “Yours very truly, “Gilmore Puckett Co., “By L. E. Puckett.” After the writing of this letter some lumber was delivered and paid for at the rate of twenty-one dollars per thousand; the appellant’s statement showing the lumber at this price and at other' prices, and the appellee’s or plaintiff’s figures showing the amounts delivered or left upon the highway. — 132 — When the lumber was moved plaintiff; contended, that he had not been paid a sum due of five hundred twenty-seven dollars and eighty-two cents. The lumber claimed to have been delivered and not paid for, according to the plaintiff, amounting to four thousand three hundred and three feet at twenty-one dollars per thousand; twelve thousand eight hundred seventy-eight feet at eighteen, dollars per thousand; and fourteen thousand four' hundred twenty-nine feet at fifteen dollars per thousand. The plaintiff’s books and memorandum did not show with precision the exact amount of each kind of lumber delivered, as he did not keep his books so as to show delivery by pieces, but he arrived 'at his demand by showing the total of number of feet loaded on his wagons and delivered and got the average or basis on a comparison with the statements of the appellant, which, were rendered on a basis of pieces received. It was the contention of the plaintiff that he was entitled to pay for the lumber delivered by him upon the Pike at the designated place. While the appellant contended that the lumber was not considered delivered under the contract until it had been received at the lumber .yards, inspected, and checked out. At the conclusion of the plaintiff’s evidence the defendant moved the court to exclude the evidence as to the alleged shortage, first because there is no proof in the record that the lumber was ever accepted, tallied, or measured or received by the Gilmore Puckett Company; and, second, because the sale and delivery was never completed in contemplation of law until there was an acceptance and an opportunity to measure and ascertain the amount of lumber for which the buyer paid; third, because under the order for the lumber and under the dealings between the plaintiff and the defendant it is shown that both understood, as the law implies, that the lumber must be delivered to the Gilmore Puckett Company at their yards in Amory and paid for there, the delivery on the Pike Road east of Leverett’s sawmill being nothing more than a step in the direction of — 133 — delivering the lumber and the sale not being complete until it was measured by the buyer according to the usage of trade at Amory, where it ivas sold and paid for; and, fourth, because there is no proof to show that the Gilmore Puckett Company received any lumber except that for which they rendered statements and paid. On this motion the court ruled as follows: “I will hear from the other side. There is only one thing in my mind that this case is entitled to go to the jury on, but I will hear from you gentlemen.” And after argument of counsel on the proposition the court rendered the following ruling: “The motion is overruled in part and sustained in part. The court is of the opinion that under all the testimony in the case that the only question that the plaintiff is entitled to go to the jury on is whether or not the defendants actually received more lumber than they paid for.” Thereupon the defendant introduced evidence of its president showing the amount of lumber received at the yards according to the ^statement rendered by its lumber checkers at the yard, and also the lumber checker as to the amount of lumber he checked from the truck bringing the lumber from the Pike, and the testimony of the person who hauled the lumber from the Pike to the yards, which testimony showed less lumber received at the yard than the plaintiff claimed to-have delivered on the Pike Eoad at the point designated. At the conclusion of all the evidence the defendant requested a peremptory instruction, the ground of the motion being because there is no proof before the jury whatever that the defendant ever received any lumber other than what was paid for and could not have, as shown by the proof, and for all the other reasons shown at the close of their testimony and, further, because there is no proof that the hauler, Orr, removed any of Glenn’s lumber and delivered it to anybody else except the Gilmore Puckett Company, for all of which the Gilmore Puckett Company accounted. — 134 — In ruling upon the motion for a peremptory instruction the court said: “For the reason that the plaintiff’s testimony shows that he delivered a- certain amount of lumber on the road and all the testimony shows that no one else except defendant’s hauler' hauled any of it away from there as far as anybody knows, and the plaintiff has testified that he asked the defendant to go out through the lumber with him and help him try to locate it, and defendant failed and refused to do this, and it is for the jury to pass on and not the court. Under all the circumstances in this case it is a question for the jury to pass on as to what became of the lumber if it ever ivas there. It is all for the-jury to pass on.” This motion was made in the absence of the jury and when it returned defendant requested the court to announce to the jury its ruling on the motion made in their absence, and the court, stating in its opinion that neither side can be wronged by so doing, said: “The only issue, gentlemen, submitted to this jury is whether or not the Gilmore Puckett Company received more lumber in their yards in Amory than they have paid for, or whether the hauler' for them, whom they hired, got more lumber > away from there than he delivered to the Gilmore Puckett Company and they paid for. That is all.” The court refused the plaintiff the following charge: “The court charges the jury for the plaintiff, J. L. Glenn, that if you believe from a preponderance of the evidence in the case that defendant contracted with plaintiff to purchase from him certain lumber to be delivered to defendant on the Pike Road about one-half mile east of Leverett’ mill in Monroe county, Miss., and you further believe from a preponderance of the evidence in the case that plaintiff did place said lumber in compliance with said contract at the place designated, for which he has not been paid, which lumber, was received by the defendant, then this constitutes a delivery to the defendant and the — 135 — defendant became responsible for said lumber and. liable for tlie contract price of same.” The court further refused to charge for the plaintiff that — “If the jury believe from the preponderance of the evidence in the case that the defendant agreed to purchase from plaintiff certain lumber delivered to defendant on the public roal about one-lialf mile east of Leverett’s mill in Monroe county, Miss., and that Glenn did deliver to defendant on said road as contracted-, which defendant has not paid him for, then the jury ivill return a verdict for the plaintiff for whatever amount he is entitled to, if any, as shown from the evidence in the case, not to exceed the amount sued for.” And also refused the following charge for the plaintiff: “The court charges the jury for the plaintiff, J. L. Glenn, that under the contract in evidence a delivery of lumber by plaintiff on the Pike one-half mile east of Leverett’s mill was a delivery of said lumber to the defendant.” The court granted for the defendant the following charge: “The court charges the'jury for the defendant that under the law although the jury may believe from the evidence that plaintiff delivered the lumber on the public road as he testified, still the jury must find for the defendant, unless the jury further believe from a preponderance of the evidence that the defendant actually received more lumber than they paid for, or tlieir hauler got such lumber for them and failed to deliver it to them.” It also gave the defendant the following: “The court charges the jury for the defendant, Gilmore Puckett Company, that the lumber it bargained for did not become its property even after hauled to the Pike Road, the place agreed on, till defendant received and inspected the lumber or had notice that it was there and was offered a reasonable opportunity to inspect and remove it.” The court also gave the defendant the following charge: “The court charges the jury for the defendant, Gilmore Puckett Company, that even though plaintiff hauled to the — 136 — Pike Road at the place mentioned in the written order more lumber than defendant received at its yard and measured and paid for, defendant is not responsible to plaintiff for it, unless defendant knew it was there and was offered a reasonable opportunity to inspect and measure it.” The court further charged the jury for the defendant as follows: “The court charges the jury for the defendant, Gilmore Puckett Company, that if you believe from the evidence that the lumber yard of the defendant ivas publicly located and accessible at all times to the public and the defendant had not specially forbade the plaintiff to enter therein and search for the lumber alleged to have been lost, then the plaintiff had a right to go on it and search for his lumber alleged to have been lost, and the defendant, Gilmore Puckett Company, cannot be held responsible solely for his failure so to do.” - Other instructions were given for the defendant to the effect that the defendant must have reasonable opportunity to inspect the lumber even though it was delivered on the Pike, and, unless they were offered a "reasonable opportunity, that the defendant ivas not liable. The case was submitted to the jury, who found for the plaintiff for tivo hundred sixty-three dollars and ninety-one cents, and judgment was entered accordingly. From this judgment the Gilmore Puckett Company appeal, and Glenn files a cross-appeal. It is insisted by the appellant that there was no evidence which Avould warrant the jury in finding that the Gilmore Puckett Company had received any of the lumber not paid for, which may have been delivered or placed upon the Pike, and that the jury was not warranted from the evidence under the court’s ruling in so finding. We think the jury had evidence tending to show that the lumber was placed upon the Pike by the plaintiff and that it was received and hauled away by the defendant. There is no suggestion in the evidence that any other person took — 137 — any of the lumber placed upon the Pike Road. There is no evidence of any theft, nor any evidence that would reasonably warrant the inference that some other person had secured the lumber placed upon the Pike in excess of what was paid for, if any was in fact so placed. And as the plaintiff testified that the lumber was so placed in excess of what was paid for, the jury had a right to pass upon the credibility of the evidence and accept the plaintiff’s theory if they believed it to be true. The greatest difficulty on direct appeal is with reference to the amounts of the various kinds of lumber placed by the plaintiff in excess of what was paid for on the Pike, and this may account for the fact that the verdict was below the amount claimed by the plaintiff. The jury may have awarded compensation at the lowest price for the lumber contracted for, so we are unable to say from the evidence that there Avas prejudicial error to the appellant. On the cross-appeal we think the place of delivery is fixed by the contract as being on the Pike Road where the lumber was taken up by the appellant, defendant below. As the contract fixed the place of delivery, the court was not warranted in our opinion in finding from the evidence that the delivery contemplated was at the yards of the aplant in Amory. We think the court should not have told the jury in instructing them as to its ruling orally that the delivery must be at the yards in Amory. The jury certainly could infer from the oral statement of the court that there was no' delivery at tlie place fixed by the contract, but that the delivery,, if any, was to be fixed by them or determined by them to be in Amory, Miss., unless the agent of the defendant actually got the lumber and failed to deliver it to them. Wé think it Avas error to refuse the cross-appellant, the plaintiff below, the instruction first above set out. We fail to see any reasonable objection to this instruction. The appellant and cross-appellee rely on Cole v. Bryant, 73 Miss. 297, 18 So. 655; Crane v. Davis, 21 So. 17; Hart v. Foundry Co., 72 Miss., 809, 17 So. 769; and Tallahatchie, — 138 — Lbr. Co. v. Thatch, 117 Miss. 261, 78 So. 154; and other cases which come from other states. We do not think the cases relied on control the controversy here. In those cases under the terms of the contract there Avas to he an inspection and count of the staves, or other things involved. This constituted expressly a part of the contract. As the court points out in those cases, the contract Avas not completed until these provisions, Avhich Avere a part of the contract, were complied with. In the present case there is no provision in the contract that the lumber is to be measured, inspected, and counted before the delivery is complete. A party has the right to contract so as to bind himself to accept the delivery at the place made and where a contract fixes the place of delivery and there is not a waiver or elements of estoppel he is bound by the contract so made, and it was the duty of the appellant to measure, inspect, and settle for the lumber at the place fixed, and under this contract it assumed the risk of loss of the lumber actually deliArered. It could have had an inspector to inspect the lumber upon the ground and measured it had it desired so to do. We think the court proceeded upon an erroneous theory that the lumber was to be inspected and measured in the yards at Amory, and we think the instructions given for the defendant above set out ought not to have been given in the present case. The plaintiff testified that he requested the defendant to permit him to go through its lumber yard and make search for the lumber which he claimed had been delivered, and which the defendant claimed it had not received and that the defendant refused him permission so to do. This the defendant denied and offered testimony that two public streets ran through its yard and that any person could go through its yard. To prevent plaintiff’s testimony on this matter having weight with the jury, the defendant got the instruction last set out above that the plaintiff had the right to go through its yards and search for the lumber. The plaintiff had nq riglit? without se — 139 — curing permission to go through the yard and search for lumber, and it was error to grant this instruction. For the errors indicated the judgment on cross-appeal will be reversed and on retrial the question will be submitted to the jury on proper instructions as to whether the lumber was delivered at the place called for in the contract. Affirmed on direct appeal, and reversed and remanded on cross-appeal. Affirmed. Reversed and remoulded.