Lumber Legal Opinions

by Unknown

Reply: Any provision that is intending to form part of a contract ought to be introduced into it in express terms or else referred to so that there can be no mistake regarding it. In the particular case under consideration the clause should be incorporated in the contract or acceptance, or the contract should state that the sale is made subject to the terms and conditions printed across the top of the paper. Either one of these would be a simple, easy procedure and would remove all doubt. A contract usually begins with the name of the place and a date, or with the names of the parties; and it ends with one or more signatures. Both parties are bound by all that lies within these limits and by everything beyond that is referred to as forming part of the agreement; but neither party is, as a rule, expected to look anywhere else—even around the margins of the same paper—to ascertain his rights and liabilities. It may be possible, in some cases, to make a provision printed on the margin of the paper containing the contract part of the contract itself, but there is always more or less doubt upon this point, and no doubt should be left where it is so easy to make the meaning plain. If the marginal printing is to be useful at all it will be mainly in connection with a statement that the contract was made subject to a certain usage of the business, or a certain custom of that particular house, and that this custom was well known to the buyer; as proof of this fact the words across the top of the paper would be useful.

Opinion No. 50.

A CARRIER IS LIABLE FOR ANY LOSS CAUSED BY HIS DELAY IN DELIVERING GOODS.

Question.—Inform us what recourse we would have against a railroad for a shipment of lumber from Buffalo to New York, which has already been on the road eighteen days, as shown by the shipping documents, and has not arrived yet. In the meantime the market dropped some 10 per cent. in price. This lumber was bought f. o. b. Buffalo.

Reply: A carrier is bound, not only to deliver the lumber entrusted to him for carriage, but to deliver it with reasonable promptness. The courts recognize the fact that promptness of delivery has an importance second only to the fact of delivery itself. What is to be held as constituting reasonably prompt delivery is to be decided in accordance with nature of the goods and all the circumstances of the particular case; it is such delivery as carriers of the kind in question, carriers by rail or vessel, as the case may be, ordinarily make in handling goods of the same kind as those in question. When the time arrives for delivery to be made, under this rule, and the goods are not delivered the consignee is entitled to sue for their value at destination on the day on which delivery ought to have been made. If the carrier is able to deliver the goods, and offers to do so, at any time before he has been required to pay for them as goods lost, the consignee cannot refuse to accept them and still recover their full value. He is bound to accept the goods whenever they are tendered, no matter how great the delay may have been; but in such a case he still has a valid claim for any loss he may have sustained as a result of the delay. His damages are at least as great as that amount by which the market value of the goods on the day of delivery is below their market value on the day on which delivery ought to have been made; to this is to be added any other loss or expense brought upon him as a direct result of the carrier’s delay.

Opinion No. 13.

THERE IS NO REMEDY AFTER ACCEPTING LUMBER.

Question.—I purchased some lumber from a party in New York State at a given figure f. o. b. shipping point, and had it forwarded by the railroad company according to my instructions. Upon arrival my customer reported to me a shortage of several hundred feet, of which I in turn notified the party from whom I bought. He stated that he hardly thought such a shortage was possible and asked me to retally the lumber. I communicated with my customer, who told me that the shortage reported was correct, and that he had used up the lumber as he was in need of the lumber, although I requested him to hold it intact. My customer in settling with me deducted for the full amount of the shortage, whereas the party who sold to me refuses to accept settlement on this basis, offering me an affidavit from his shipper that the quantity alleged to have been shipped by him was correct. Am I compelled according to the New York court rulings to remunerate the party who sold to me as per his invoice? He claims that the lumber ceased to belong to him when he placed it at the railway company’s depot subject to my instructions. For this reason he demands full payment. I am in a position to furnish an affidavit from the party to whom I sold the lumber to the effect that the shortage actually occurred at destination, although the lumber was received in good condition.

Reply: This lumber was sold f. o. b. shipping point and it is true, as the seller says, that title passed to the buyer at that point. This fact, however, does not excuse the seller for delivering short count or tally, if he made such delivery. He undertook to deliver a certain quantity of goods at the shipping point, and his contract obligation was not fulfilled unless he delivered that quantity. It does not appear, however, that the contract was such as to allow the buyer to accept less than the quantity sold at a pro rata price. As the contract is described to us, it was a sale of a definite quantity for a stipulated price, with no other provision. That being the case, the buyer, when tender was made to him had no choice other than to accept the tender as satisfactory, or else to reject it and claim damages for breach of contract. He did accept the goods and he used them. It is too late now for him to say that the tender was in any respect unsatisfactory. The buyer might have rejected the goods on account of short tally, and then he could either have claimed damages for breach of contract, as we have suggested, or he could have communicated with the seller, offering to take the shipment at less than the contract price—could have made a new contract, in short. He did neither. He accepted the goods. He will not be heard now to say that they were, in any respect, not such goods as the contract called for. Our correspondent can be compelled to pay for these goods the full contract price, and the person to whom he sold them can be compelled to do the same.

Opinion No. 31.