December 10, li)15 



Pertinent Legal Findings 



Queries on quc.itiniht nHxinn on anii points mrolrhig tlir law as if is applied to lum'berinu and allied industries mill be qiren proper expert 

 attention throufiti this department if sulimitted to HAunwonn Kkioud. Tliere i, ill he no elian/e for sueli service, but Hardwood Rfcoud 

 reseroes the ritjht to publish questions and answers witliout designating names or loeation of inijuiries unless specificallii requested not to do so. 



Phases of Lumber Sales Contracts 



lu a suit by the Acme Lumber Company against the Board of Com 

 missioners of the port of New Orleans to recover for lumber sold 

 and delivered to defendant board, and to recover damages for refusal 

 of the board to accept delivery of all the lumber contracted for, the 

 Louisiana supreme court decided the following points: 



Under a contract for sale of "B grade" lumber, to be delivered 

 and unloaded by and at the expense of the seller, and measured and 

 graded by the purchaser 's inspectors, whose decision is final as to 

 grade and measurement, it is not unfair for the seller to ship and 

 tender for inspection a grade of lumber called "square edge and 

 sound," containing principally "B grade" and some higher 

 and some lower grade of lumber; the seller allowing the purchaser 

 to take all the "B grade" and better, and removing the re- 

 jected lumber promptly at liis own expense. 



When the lumber purchased by a municipal board has been in- 

 spected, measured, and accepted by the inspectors employed by the 

 superintendent of the board, under a contract of sale stipulating that 

 the superintendent or his authorized representative shall be the sole 

 judge of the quality and measurement of the lumber, the board can- 

 not legally withhold the price on the ground that ' ' its inspectors were 

 inexperienced and incompetent, and made faulty, imperfect, and er- 

 roneous inspections, ' ' unless there was dishonesty on the part of the 

 seller or collusion with the board 's superintendent or inspectors. 



But, although i)laintiff was permitted to recover the agreed price 

 of the lumber actually delivered, the court said concerning the claim 

 for damages for defendant 's refusal to accept further deliveries : 



' ' The item of $2,907.13, however, is for the loss of profit which 

 the plaintiff might have made, at $2.97 per thousand feet, on the 

 orders given for 978,889 feet of lumber, which the plaintiff was pre- 

 vented from delivering b}' the defendant 's breach of the contract. The 

 Civil Code (article 1934), provides that, where the object of a con- 

 tract is anything but the payment of money, the damages due to the 

 creditor for its breach are the amount of the loss he has sustained 

 and the profit of which he has been deprived. In this case, however, 

 the plaintiff estimates the profit of which he has been deprived, on 

 the lumber which was not delivered, at the same rate of profit that 

 was made on the lumber which was delivered. The defendant's answer 

 is that the profit made on the lumber delivered was made on faulty, 

 imperfect, incomplete, and erroneous inspections, made by incom- 

 petent and inexperienced inspectors representing the purchaser. Al- 

 though the defendant was bound by the inspections and approvals 

 made by the authorized agents of the board, the defendant was not 

 bound to continue their employment. The board of commissioners 

 had a right to discharge its lumber inspectors and employ others. 

 The question whether the inspectors were competent or incompetent, 

 and whether their inspection was correct or incorrect, was deemed 

 irrelevant, and was not decided by the district court. That question, 

 however, is relevant in determining whether the plaintiff should 

 recover, for the loss of profit on the lumber not delivered, at the same 

 rate of profit that was made on the lumber that was delivered accord- 

 ing to the inspection complained of." (69 Southern Reporter 742.) 



Time for Removing Timber 

 A deed conveyed standing timber, with the privilege of removal 

 within ten years, and granted an additional five years on an annual 

 payment at the buyer's office, on stated days, equal to eight per cent 

 of the original price of the timber. Under this deed, the North Caro- 

 lina supreme court decided in the case of Taylor vs. Hunger & Ben- 

 nett, 86 Southern Reporter 626, that the buyer was not required to 

 give any notice of intention to exercise the privilege of cutting, and 

 removing the timber within the additional five year period. He was 

 entitled to proceed with the cutting and wait for the seller to call 

 for the payment. It is well settled that where a place of pajanent is 



fi.\ed, the person to whom the payment is to be made should be present 

 liy person or agent to receive the money. 



But in the late ease of Gray vs. Marion County Lumber Company, 

 86 Southeastern Reporter, 640, it was decided by the same court that, 

 under a conveyance of standing timber not specifying any time for 

 removal, the purchaser was required to cut and remove it within a 

 reasonable time, and the lapse of fourteen years without any action 

 looking to its removal was an unreasonable time, and terminated the 

 right of removal ; and that it could not be revived or extended except 

 by consent, and hence not by tender of interest to secure an exten- 

 sion, not made until fifteen years after the conveyance and a yea,- 

 after suit brought to remove the conveyance as a cloud on plaintiff's 

 title. 



Shipper's Rights Against Carrier 



Tlie right of a shipper of lumber to maintain suit against the carry- 

 ing railway company for injury to the freight in transit was con- 

 sidered by the North Carolina supreme court in the late case of El- 

 lington & Guy vs. Norfolk Southern Railroad Company, 86 North- 

 eastern Reporter, 693, where the court said: 



' ' The plaintiff, who is the consignor of certain lumber shipped 

 under an open bill of lading, is prosecuting this action to cover dam- 

 ages for negligence in the transportation of the lumber. He has 

 offered no evidence tending to prove that the lumber was shipped 

 on consignment, or that he retained any interest therein, nor has any 

 evidence been introduced tending to show that he has suffered dam- 

 age. He attempted to prove that he had been compelled to pay addi- 

 tional and increased freight. charges by reason of the negligence of the 

 defendant, but the only evidence of this fact is a freight bill whieh 

 was produced by the defendant upon notice, which only shows a pay- 

 ment of the freight, and does not indicate whether it was paid by the 

 consignor or consignee. As the consignee becomes the owner of goods 

 shipped upon an open bill of lading at the time of delivery to the com- 

 mon carrier, nothing else appearing, he is prima facie liable for the 

 freight, and, in the absence of proof to the contrary it would be 

 presumed that he paid it. On these facts and in this condition of the 

 record, it is clear that the plaintiff is not entitled to recover, and that 

 the motion for judgment of nonsuit ought to have been sustained." 



Duty to Mitigate Damages 



One aggrieved by another's refusal to complete a contract to sell 

 standing timber, cannot recover damages whieh could reasonably have 

 been avoided by purchasing other timber to take the place of that 

 covered by the broken contract, according to the holding of the North 

 Carolina supreme court in the case! of Wilson vs. Scarboro, 86 Southern 

 Reporter 611. Judgment against the defaulting party will be lim- 

 ited to such damages as could not have been avoided. 



Compensation for a wrong is limited to such consequences as the 

 injured party could not have avoided by reasonable diligence. All 

 other consequences are regarded as remote. The injured party's own 

 negligence or wilful fault in failing to take reasonable precautions to 

 prevent or reduce the damage after notice of defendant's wrong is 

 regarded as the proximate cause of such injuries as could have in 

 this way been avoided. Courts frequently speak of the duty to make 

 the damages as light as possible, but it is a duty only in the sense 

 that compensation is denied for losses which might have been pre- 

 vented by careful conduct on his part, and they are therefore said to 

 be remote, because the will or negligence of the injured party has in- 

 tervened as a separate and independent cause producing them. 



The weight of wood is generally some key to its strength, except 

 wood that is filled with pitch or some other similar matter. 



A good machine is an inspiration to the man ojierating it; also 

 to his associates. 



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