Lumber Legal Opinions

by Unknown

Membership in our Association is restricted to legitimate manufacturers of lumber and wholesale dealers in lumber who are in good standing in the trade.

There is no initiation fee. The annual dues are $50.00, with a charge of $50.00 additional to those who desire the benefits of the Bureau of Information. The Collection Department and Transportation Bureau are open to all members without charge other than the very moderate fees scheduled for actual work performed.

These opinions and abstracts were compiled, and arranged under the supervision of the LEGAL DEPARTMENT, BUREAU OF INFORMATION, W. W. Schupner, Department Manager.

INDEX

The cross index is arranged so as to bring out the several points in each opinion or extract. The number at the left, following each opinion or extract, indicates the number of such opinion or extract referred to in the index. The first number after the subject gives the number of the opinion and the second the page number, for example: after “acceptance of checks sent in full settlement” appear 18–21, denoting that the information can be obtained from opinion 18 on page [21]. The other figures after the same subject indicate the other opinions and pages where similar information is given.

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First number gives number of opinion; second number gives page number.

• Agent.
  • Authority of salesman to bind principal, 35–[36]
  • Carrier as agent—see common carriers
  • License in New York City, 3–[17]
  • May receive notice for principal, 88–[74]
  • See also certificate to do business.
• Acceptance of
  • checks sent in full settlement, 18–[21], 20–[28], 51–[49], 66–[60], 80–[68], 95–[77]
  • delayed shipments avoids claim for delay, 87–[73]
  • draft does not avoid claim for inferior lumber, 92–[76]
  • less than invoice price, 109–[89]
  • offer constitutes valid contract, 72–[65], 96–[79]
  • order through salesman, when it is complete, 96–[78]
  • shipment affected by statute (New Jersey), 81–[69]
  • shipment affected by warranty, 62–[57], 102–[83], 108–[89]
  • shipment unless promptly rejected, 62–[57]
  • shipment validates verbal contract, 65–[59], 86–[72]
  • shipment when it is all or partially used, 34–[36], 90–[75], 102–[83]
  • shipment when it is retained, 6–[17], 31–[48]
  • shipment when it is used may depend on a private custom, 90–[75]
• Acceptance necessary to make valid contract, 72–[65], 96–[79]
• Accord and satisfaction, 18–[21], 20–[28], 51–[49], 66–[60], 80–[68], 95–[78]
• Accounting by executor, 23–[26]
• Accounts stated—what does it consist of and what advantage, 101–[82]
• Assignment for creditors voided by bankruptcy, 14–[22]
• Assignment of account by foreign corporation (New York), 63–[58]
• Banking.
  • Certification of check releases maker, 45–[43], 104–[85]
  • Liability of bank for failure to give notice of protest to endorser of note, 99–[81]
  • Protest not always necessary, 52–[50]
• Bankruptcy.
  • Avoids assignment of creditors, 14–[22]
  • Discharge not prevented by giving bad check, 41–[39]
  • Discharge, what will prevent it, 97–[79]
• Bill of Lading.
  • in name of buyer may not release seller, 53–[51]
  • may be required for surrender of shipment, 29–[34]
  • stipulation as to delivery, 11–[20]
  • stipulation as to notice of arrival, 25–[31]
  • to order retains title, 70–[62]
• Breach of contract—see contracts.
• Buyer’s position when lumber offered is not as per contract, 37–[33]
• Cancelling contract when one party guilty of breach, 5–[14], 47–[44], 67–[61], 71–[64]
• Cancelling order by purchaser before accepted by seller’s home office, 96–[79]
• Cancelling order for non-delivery or delay, 43–[41], 84–[71]
• Carload of lumber must all be in accordance with order to fulfill contract, 76–[66]
• Certification of check binds bank and releases maker, 45–[43], 104–[85]
• Certificate for individual to do business in New Jersey or New York, 10–[22]
• Certificate to do Business.
  • Indiana, 106–[86]
  • Kentucky, 106–[87]
  • Maryland, 55–[52]
  • Michigan, 106–[88]
  • Mississippi, 106–[87]
  • New Jersey, 17–[18], 64–[58]
  • New York, 17–[19], 26–[32], 63–[57], 106–[88]
  • Ohio, 106–[87]
  • Pennsylvania, 19–[24]
  • Tennessee, 106–[87]
  • West Virginia, 106–[86]
• Change in original order no excuse for refusing shipment, 1–[13]
• Checks sent in full settlement, etc., 18–[21], 20–[28], 51–[49], 66–[60], 80–[68], 95–[77]
• Common Carriers.
  • Agent for buyer, 33–[77], 53–[51], 70–[62], 88–[74]
  • Agent for seller, 22–[28], 37–[33], 70–[62], 88–[74]
  • Can insist upon acceptance of delayed delivery, 13–[47], 56–[53]
  • Claim for loss or damage, 13–[47], 46–[42], 56–[53], 59–[54], 73–[65]
  • Liability as warehouseman, 8–[16], 48–[44]
  • Liability for delay, 13–[47]
  • Liability for delivery without surrender of Bill of Lading, 29–[34], 58–[54]
  • May return rejected shipment to consignor, 58–[54]
  • Must deliver shipment as directed, 11–[20], 61–[56]
  • Not always compelled to notify consignor that shipment is rejected by consignee, 61–[56]
  • Not bound to act as intermediary, 58–[54], 61–[56]
  • Notice to, when loading complete, 8–[15]
  • Obligation to send notice of arrival, 8–[16], 25–[31], 28–[33], 48–[44]
  • Should pay value at destination for lumber lost, 59–[55], 73–[65]
  • Stopping shipments in transit, 27–[29], 79–[68], 105–[85]
  • When can charge demurrage, 25–[31]
  • When liability begins and ends, 8–[16], 48–[44]
• Conditional clauses on letter-heads, orders, etc., 24–[27], 110–[48], 50–[46], 82–[70]
• Confirmation of order by home office, 65–[59], 96–[78]
• Confirmation as to time of shipment, 36–[35]
• Contract.
  • Acceptance of offer constitutes valid contract, 72–[65], 96–[79]
  • Against liability for delay in shipping, 24–[26]
  • Breach for failure to make good delivery, 6–[18], 37–[33]
  • Breach for non-delivery, 22–[28], 30–[30], 39–[38], 43–[41], 84–[71]
  • Conditions must all be part of contract, 24–[27], 50–[46], 110–[48], 82–[70]
  • Incomplete when only part of car as per order, 76–[66]
  • May be cancelled when one party guilty of breach, 5–[14], 47–[44], 67–[61], 71–[64]
  • May be void if a mistake in it is obvious, 72–[65]
  • Should be in writing and signed, 65–[59]
  • Valid by acceptance of offer, 72–[65], 96–[79]
• Conveyance in F. O. B. shipment, 42–[40]
• Corporations (foreign) see certificate to do business.
• Credit cannot be demanded when business transferred, 40–[39]
• Credit must be kept good, 30–[30], 39–[38], 47–[44], 67–[60], 71–[64], 79–[68], 91–[75]
• Custom—private and general—as to using a shipment, 90–[74]
• Damage claim against carrier, amount of claim, 13–[47], 46–[42], 56–[53], 59–[54], 73–[65]
• Damage in transit, who responsible, 8–[15], 54–[51]
• Delay beyond shipper’s control, 50–[46], 84–[71]
• Delay by carrier, liability for, 13–[47]
• Delay in shipment, liability for, 24–[27], 50–[46], 84–[71]
• Delayed delivery, acceptance of, avoids claims for damages, 87–[73]
• Delayed delivery by carrier should be accepted, 13–[47], 56–[53]
• Delayed delivery need not be accepted as fulfilling contract, 84–[71], 87–[73]
• Delivery.
  • Delayed, liability for, 24–[27], 50–[46], 84–[71]
  • In installments, 5–[14], 43–[41], 44–[41], 47–[44], 86–[72], 102–[83]
  • Liability for non-delivery, 22–[28], 30–[30], 39–[38], 43–[41], 49–[45], 91–[75]
  • May be stopped when buyer becomes insolvent, 27–[29], 71–[64], 79–[68]
  • May not affect original purchaser, 38–[35]
  • Delivery must be complete, 31–[48], 76–[66]
  • Delivery must be made by carriers as directed, 11–[20], 61–[56]
  • Not in accordance with contract, 37–[33]
  • On consignee’s side-track, 48–[45]
  • What constitutes, on F. O. B. sales, 8–[15], 37–[33], 42–[40], 53–[50], 70–[62]
• Demand that shipment be returned cannot be enforced, 6–[18]
• Demurrage—see common carriers.
• Discount must be in accordance with terms, 18–[21], 57–[53], 69–[61]
• Draft (accepted) with Bill of Lading does not avoid claim for inferior lumber, 92–[76]
• Draft with Bill of Lading to order, 70–[62]
• Due notice, what does it mean, etc., 83–[71]
• Endorser on note entitled to notice of protest, 99–[81]
• Executor, time for accounting, 23–[26]
• False statement may prevent discharge in bankruptcy, 97–[79]
• Fire delaying shipment, seller’s liability, 50–[46]
• F. O. B.—what constitutes delivery, 8–[15], 37–[33], 42–[40], 31–[48], 53–[50], 70–[62]
• Foreign corporations—see certificates to do business.
• Freight as a consideration for passing title, 9–[23], 53–[50], 54–[51]
• Freight rate advance, 110–[48]
• Fraud, statute of, 65–[59]
• Indefinite quantity, order for, 98–[80], 103–[84]
• Indiana—necessity of foreign corporations filing certificates, 106–[86]
• Insolvents, shipments to, can be stopped, 27–[29], 71–[64], 79–[68]
• Insolvency, cause for declining further shipments, 67–[61], 71–[63], 91–[75]
• Inspection on arrival—privilege of, 62–[57], 92–[76], 102–[83]
• Installment Shipments.
  • Acceptance of one installment validates verbal contract, 86–[72]
  • Contract for delivery, not separable, 5–[14], 93–[77], 102–[83],
    • (see Minnesota case), 107–[88]
  • Cancelling for non-payment, 47–[44], 71–[64]
  • Cancelling order for non-delivery, 43–[41]
  • Delay in shipment, 44–[41]
  • Using one installment may constitute waiver of objection to subsequent installments, 102–[83]
• Invoice terms not effective unless part of contract, 82–[70]
• Judgment in one state ground for suit in another, 60–[55]
• Kentucky, necessity of foreign corporations filing certificate, 106–87
• Loss for non-delivery of lumber, 49–[45]
• Loss for reselling shipment refused on arrival—method of recovery, 1–[13], 5–[14], 78–[67], 94–[77]
• Lost shipment, amount of claim against carrier, 59–[55], 73–[65]
• Maryland, necessity of foreign corporations filing certificate, 55–[52]
• Maximum and minimum amounts in contract of sale, 98–[80], 103–[84]
• Measure of claim against carrier, 13–[47], 46–[42], 56–[53], 59–[54], 73–[65]
• Michigan, necessity of foreign corporations filing certificate, 106–[88]
• Mississippi, necessity of foreign corporations filing certificate, 106–[87]
• Mistake must be obvious to avoid contract, 72–[65]
• New Jersey—certificate for individual dealing under assumed name, 10–[22]
• New Jersey lien law, 21–[32]
• New Jersey—necessity of foreign corporations filing certificate, 17–[18], 64–[58]
• New Jersey statute affects acceptance, 81–[69]
• New York City license for agent, 3–[17]
• New York State certificate for individual dealing under assumed name, 10–[22]
• New York—necessity of foreign corporations filing certificate, 17–[19], 26–[32], 63–[57], 106–[88]
• Non-suit for foreign corporations—see certificates to do business.
• Notice.
  • As to non-delivery, 49–[45]
  • Of arrival by carrier, 8–[16], 25–[31], 28–[33], 48–[44]
  • To agent is notice to principal, 88–[74]
  • To carrier when loading complete, 8–[15]
  • To carrier as to measure of damages, 46–[43]
  • What constitutes reasonable notice, 83–[71]
• Offer accepted constitutes valid contract, 72–[65], 96–[79]
• Offer may be withdrawn until accepted, 96–[79]
• Ohio—necessity of foreign corporations filing certificate, 106–[87]
• Order, confirmation by home office, 65–[59], 96–[78]
• Partial payment validates verbal contract, 65–[59], 86–[72]
• Partial shipments—see installment shipments.
• Pennsylvania—necessity of foreign corporations filing certificate, 19–[24]
• Postscripts on letters or contracts should be signed, 82–[70]
• Principal bound by notice to agent, 88–[74]
• Principal not always bound by salesman’s act, 35–[36]
• Prompt rejection of shipment necessary to avoid acceptance, 62–[57]
• Protest not always necessary, 52–[50]
• Quantity, order for indefinite quantity, 98–[80], 103–[84]
• Railroads—see common carriers.
• Reasonable time for shipment, unless otherwise agreed, 36–[35]
• Reasonable time, what does it mean, 13–[47], 62–[57], 83–[71]
• Refusal of seller to make deliveries, 49–[45]
• Refusing shipment on arrival, 1–[13], 5–[14], 56–[52], 78–[67], 94–[77]
• Refusing to send shipping instructions for lumber ordered, 12–[20]
• Rejection of shipment by notice to railroad, 88–[74]
• Rejected shipment may be returned to consignor by carrier, 58–[54]
• Rejection of shipment, carrier not always compelled to notify consignor, 61–[56]
• Rejection of shipment must be prompt, 62–[57]
• Reselling lumber refused on arrival, 1–[13], 5–[14], 78–[67], 94–[77]
• Retaining lumber shipped constitutes acceptance, 6–[17], 34–[36]
• Sales in installments—see installment shipments.
• Sales on credit, 30–[30], 39–[38], 40–[39], 47–[44], 67–[60], 71–[64], 79–[68], 91–[75]
• Sales of indefinite quantity, 98–[80], 103–[84]
• Salesman’s order, when accepted, 96–[79]
• Salesman’s power to bind principal, 35–[36]
• Selling lumber refused on arrival, 1–[13], 5–[14], 78–[67], 94–[77]
• Shipping instructions for lumber ordered, refusal to send, 12–[20]
• Stated accounts, advantage of, 101–[82]
• Statement of assets, etc., if false, may prevent discharge in bankruptcy, 97–[79]
• Statute of fraud, 65–[59]
• Stopping shipment in transit, 27–[29], 71–[64], 79–[68], 105–[85]
• Storing lumber refused on arrival, 1–[13], 5–[14], 78–[67]
• Strike delaying shipment, seller’s liability, 50–[46]
• Suit can be instituted in one state on judgment obtained in another state, 60–[55]
• Suit by foreign corporation may not be maintained because of failure to file certificate—see certificate to do business.
• Taxes of foreign corporations, 89–[74].
  • See also certificate to do business.
• Tender in fulfillment of contract should be accepted or rejected as a whole, 31–[48]
• Tennessee—necessity of foreign corporations filing certificate, 106–[87]
• Terms of sale must be part of contract, 82–[70].
  • See also conditional clauses on letter-heads, etc.
• Terms of sale should stipulate discount, 18–[21], 57–[53], 69–[61]
• Time of shipment, confirmation of, 36–[35]
• Time of shipment, reasonable unless otherwise agreed upon, 36–[35]
• Title, during transit (carrier’s assumption), 61–[56]
• Title, not affected by freight payment, 9–[23], 53–[50], 54–[51]
• Title, when it passes, 8–[16], 22–[28], 31–[48], 48–[45], 53–[50], 54–[51], 70–[62]
• Title, transfer after purchase holds original buyer, 38–[35]
• Using lumber shipped constitutes acceptance, 34–[36], 90–[75], 102–[83]
• Verbal contract, when valid, 65–[59], 86–[72]
• Warehouseman, carriers’ liability as, 8–[16], 48–[44]
• Warranty may survive acceptance, 62–[57], 102–[83], 108–[89]
• West Virginia—necessity of foreign corporations filing certificate, 106–[86]

CHOICE OF REMEDIES WHEN LUMBER IS REFUSED ON ARRIVAL.