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Pertinent Legal Findings 



OPERATION OF TEXAS LIEN LAW 

 siiiii< tlu' Toxiis I'diistitiitioii giuiiHiitoos a lion for iiiatorini 

 iiiishoil tor a Ixiililiii-;, to lio enforroil as provided by art of 

 • • Icf-islaturi", a ileali'i- who «U|i]dio!! inatprials for the con- 

 ! notion of a building does not lose his lien by failin<r to file 

 itemized account of his claim, or by otherwise failing to 

 rn|>ly with the statutes of the state. (Texas Court of Civil 

 \|i|ieals, Harlan vs. Texas Fuel & Supply Company, 160 South- 

 western Keporter 1142.) But, notwithstanding this decision, 

 material men in Texas will liml it the cheapest and most satis- 

 I'actory way to follow the statutory provisions. In nearly all, 

 not all. the other states, the courts hold that all the rei|uire- 

 .iits of the lien laws must be substantially followed in onler to 

 .serve a lien. 



SUFFICIENCY OF LIEN STATEMENT 

 When buililing materials are soM uuiler an agreement that a 

 isonable price shall be paid for the whole lot, in lieu of 

 ■ inized prices originally agreed upon, a statement for a 

 ■ ■hani<- 's lien need not specify the prices for the various items. 

 Missouri Court of Appeals, National I'ress Urick Company vs. 

 . H. Lester Construction Com]>any, KiO Southwestern Reporter 



WAIVER OF DAMAGES FOR DELAY IN DELIVERY 



Although a buyer of Imnlicr will bo deeme.l to have waivc.l 

 any claim of damages resulting from the seller's delay in making 

 delivery, when intent to waive clearly ajipears, no waiver arises 

 from the mere fai-t that the buyer accepts a partial delivery after 

 the time when the lumber should have been ilelivered, esiiccially 

 where the buyer has frequently drawn the seller's attention to 

 loss occasioned by the delay. (Washington Supreme ('(Jiirt, 

 AVisconsin Lumber Company vs. Pacific TanU & Silo ('iiTii]).-iiiy, 

 ]3<; Pacific Kejiorter 691. 'i 



ADEQUACY OF GUARD ON CIRCULAR SAW 



111 a suit fur jiersonal injury to a ripsaw operator, it was open 



the jury to find that defendant employer was guilty of negli- 



_ lice in failing to provide a spreader, the aecident having re- 



Ited from a kicking back of a lioard w-hich the workman was 



wing, although the machine was equipped with a hood, which 

 ,, roved cumbersome and inadequate for the work of sawing 

 polished wood. (Washington Supreme Court, Jensen vs. Shaw 

 Show Case Company, 136 Pacific Reporter COS.) 



LUMBER ROAD AS "RAILROAD" 



Independently of statute an employer is generally held not to 

 be liable for injury to an employe resulting from negligence of 

 a co-emjdoye in the same department of service, unless the latter 

 has been habitually so negligent that the employer was guilty 

 of negligence in retaining him. By a statute in force in North 

 Carolina this rule is abrogated as to "railroad" employes in 

 •charge of machinery, so that negligence of a eo-emplo3'e is no 

 defense to a suit for personal injury. By a late decision of the 

 North Carolina supreme court, this law is held to extend to 

 lumber companies so far as concerns the operation by them of 

 railroads in transacting their business. (Huckner vs. jrailison 

 ' ■■iinty Kailroad I '.]iii|i;iiiy, Ml Sdiithcastern Keporter 22.').) 

 RESCISSION OF A CONTRACT OF SALE 



U'here a luiyer of lumber, after paying part of the price, re- 



' "ed delivery, trie seller implicitly agreed to a rescission of the 

 ' ontract by ilirecting promjit reshipment. and the buyer liecame 

 entitled to reimbursement for the amount paid on the jirice, 

 ancl, also, for the amount of the return freight charges; it appear- 

 ing that the seller did not object when notified by the buyer 

 that the latter would claim reimbursement on account of freight 

 charges. The seller could not legally refuse to accept a return 

 of the lumber, after having directed its reshipment, merely be- 

 •■atise e.ncli piece had been marked across the ho;id with red p;iiiit, 



indicating that it w:is unsalable, where the marks could have been 

 scrajied or cut off without injury to the lumber at a small expense, 

 which the buyc^r consented to pay. Pending settlement of the 

 dispute between the parties relative to reimbursement of the 

 buyer he was entitled to "retain possession of the lumber. (South 

 I'arolina Sujireme Court, Trexicr vs. Wilson, 80 Southeastern Re- 

 porter 271.1 



WAIVER OF BREACH OF WARRANTY OF MACHINE 

 A lumber company which Ijought a planing machine under 

 warranty as to its efficiency waived right to rely upon a defective 

 condition of the machine arising from the fact that the pressure 

 bar failed to keep the lumber down, where the machine was sold 

 under a contract which provided that the company's retention 

 of the machine for thirty days should constitute an acceptance 

 of it. (Alabama Sujireme Court, Berlin Machine Works vs. 

 Kwart Luiiilicr Company, 0.3 Southern Re|iortcr ."liT. i 



RIGHT LIEN FOR MATERIAL USED FOR RECONSTRUCTION 

 One who furnishes material for the construction of a building 

 w-hich is jiartly burned in the course of its erection is enitled to 

 enforce a lien tor the price of such material, as well as for addi- 

 tional material furnished to reconstruct the structure. (Ne- 

 braska Supreme Court, Lincoln Savings & Loan Association vs. 

 Wclilicr, 141 Xdrtlnvcstcrn Reporter 24.'>. i 



RESPONSIBILITY FOR NEGLIGENCE OF CO-EMPLOYE 

 A lumber company is not liable for injury to an employe while 

 liaudling boards, caused by negligence of a co-employe, where 

 the latter had not been habitually so incompetent or careless that 

 that employer can be regarded as guilty of negligeme in retain- 

 ing him in emidoynient. Mere inexperience or a single negligent 

 .•let lilies not est.-iblish imonipetency on the jiart of a worker 

 witliin the rule of law which requires every employer to use due 

 care to furnish conqiet.nit fellow workmen. (Wisconsin Supreme 

 Court, S/elikicki vs. Conner Lumber i: Land Company, 144 North- 

 western Ke]iorter 2.").^.) 



EMPLOYE'S DUTY TO INSPECT APPLIANCES 

 A wociilw orker engaged to operate niachinery is under no duly 

 to inspect it to discover defects w-hich may cause injury to him, 

 being entitled to assume that his employer has discharged his 

 duty to use reasonable care to provide reasonably safe appliances. 

 (Texas Court of Civil Appeals, T. B. Allen & Company vs. Shook, 

 160 Southwestern Reporter UHU.) 



MISQUOTATION OF PRICE THROUGH MISTAKE 

 When an iifl'cr to sell hardwood lumber, through clerical error, 

 quotes a lower price than the seller intended to quote, and is ac- 

 cepted by the person to whom it is made, is the seller bound by 

 the contract thus formed by such offer a^d acceptance? Tha 

 courts of all the states have repeatedly held that, in such a case, 

 the seller cannot excuse refusal to deliver at the price named, 

 on the ground of mistake, where there was nothing to put the 

 buyer on notice that a mistake was made. But the Texas court 

 of civil appeals has just handed down an opinion which shows 

 that til is is not the law, if the buyer has intimation that a mis- 

 take was made. This decision applies to sales of all kinds of 

 ( onimodities which have a market value, although it was an- 

 nounced in a case which was based on a contract to sell seed. 

 A seed company in Tcn.is (ifl'i'icd to .sell a quantity of millet seed 

 at .tl..'!.") the liuiidi('.l« eight, at a time when the market value 

 was $2..1.'); that being the jirice which the seller intended to 

 quote. On receiving the offer as written, a Kansas seed house 

 immediately wired, "We accept your letter seventeenth. Ship 

 quick.'' Having discovered the mistake, the Texas company re- 

 fused to make devilery of the seed, and the Kansas concern 

 brought suit to recover damages on the theory of a breach of 

 contract. In denying the right of recovery the court of civil 

 :ip|ieals said, in part; "Onlinarily, when the mistake is not 



