Lumber Legal Opinions

by Unknown

It occasionally happens that a purchaser of a car of lumber refuses to accept same and leaves it at the mercy of the railroad company or common carrier. In this way demurrage piles up and other loss may arise and the shipper hesitating, for fear of compromising himself, refuses to do anything with the lumber on his part. This is generally a mistake because it is the duty of the shipper to make the loss, if any, as small as possible and it is always safe to first notify the vendee, who has refused to receive the goods that he, the shipper, will endeavor to dispose of them in the best possible manner and hold the vendee responsible for any loss or damage thereby. In this case he may have to have the goods sold elsewhere or returned to him, and it is always advisable to endeavor to have them inspected by two or three competent parties in order to establish the market value and to ascertain that the defects, if any, claimed by the vendee, do not exist.

Opinion No. 94.

ACCORD AND SATISFACTION.

If a buyer of lumber, disputing the quantity or quality, sends a check for an amount less than the invoice to the seller, does the seller in accepting the same preclude himself from recovering the balance of the account? This situation occurs, we believe, often in lumber circles and very frequently the remittance is accompanied by a letter or some notice written on the check to the effect that it is sent as a settlement in full and some go so far as to add that if accepted by the creditor it must be at his peril so far as the remainder of the invoice or account is concerned. The law on this point is generally similar to that of the State of New York wherein it is well settled that the acceptance or use of such a remittance does not stop or prevent the creditor from recovering the balance of the debt from its debtor unless there has been an honest dispute as to the amount of indebtedness or the existence of any indebtedness at all. This is what is termed an unliquidated account or claim and in such a case, when one tenders an amount to be accepted in full or rejected and the other accepts the remittance, it is a complete accord and satisfaction. The rule is different when the amount or debt is certain and there is only a dispute between the parties concerning questions of shortage, quality, etc. This is what is termed a liquidated claim and the acceptance of a remittance to be a full settlement does not preclude the creditor from using the remittance, crediting the same to the account of the debtor and suing for the balance.

Opinion No. 95.

CANCELLING AN ORDER BEFORE SHIPMENT—EFFECT OF SAME.

Many lumbermen take orders from their customers through traveling men or other representatives. Usually the orders are written down in a manifold book and often are signed by the buyer. The order is usually taken subject to confirmation by the house or home office. This acceptance or confirmation is customarily made by acknowledgement of the order in writing to the purchaser. The question in point is whether or not, if an agent has taken an order as above, can the purchaser cancel the order and his obligation to accept the lumber? In a case in this State a purchaser of merchandise placed the order with the traveling man and later wrote to the house cancelling the same, as he found he could buy similar goods for less money. The purchaser wrote before the seller had communicated any acceptance or intention to fill the order which had been given to the seller’s representative. Some correspondence ensued in which the seller refused to cancel the order and later shipped the goods to the purchaser, who refused to receive them. The action resulted in a judgment in favor of the seller, which was reversed on appeal, in which numerous authorities were cited by the Appellate Court holding substantially as follows—“An order or request in writing, addressed to a dealer or his agent to ship to the writer on or before a date named, goods of a kind specified, for which the writer agreed to pay a price named, does not constitute a contract until accepted or acted upon by the vendor and may be withdrawn at any time before acceptance.”

It is obvious that the result would be different were the vendor to have signified his acceptance of the order prior to the cancelling or withdrawal of same by the purchaser, as we would then have a valid contract, which could not be cancelled without mutual agreement.

In this connection it might be well to add that in business transacted by mail, the general rule is that the time of the mailing or depositing in the mail of a letter is the presumptive time of the communicating of the facts therein to the party to whom the letter is addressed, hence when an order is sent by mail, another letter withdrawing the order, if mailed prior to the mailing of the acceptance by the other party, is a complete cancellation of the order in the first letter. In other words, the law does not take into account the periods elapsing by reason of the means of communication but only the acts of the parties in so far as the time of such acts is considered to have taken place.

Opinion No. 96.