HARDWOOD RECORD 



ih rpoilipr lu, li>ir> 



The Northwestern Cooperage & LumberCompany 



The Home of the "Peerless " Standard Brand Products 



W>«lrrn omcr : 

 216 l.iimbrr KirhitnKr. >llnnrnp*li«. Minn. 



GLADSTONE, MICHIGAN 



Mllla Hi Glailnlnnr and Karanaba, Mlrhlsan 



Manufacturers of the following "Peerless" Standard Brand Products: Hardwood Flooring, Staves, 

 Hoops, Heading and Veneers, Hemlock Lumber, Lath, Shingles, Posts, Poles and Ties, 

 and Hemlock Tan Bark 



"Peerless" Rock Maple, Beech & Birch Flooring x.VfrS.l'S 



art cuarant»<-<l TRY IT THF 



pd cars — Car or Carre 



i},crit r,f \Sap\r Flooring ^fanufacturcrr' Asnooiation.iWhcn writing mention the Hardwood Rt-cord.) 



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The Mail Bag 



B 958 — Rights Under Lumber Sales Contract 



A North Carolina voneor ami paiiol firm writes H.MiDwoon RKfOitn 



as f oIlowH : 



Wc have a cas<? od which wo nro s<'okinc advlco and wrltp you for 

 •amo. The case U as follows: WTicre a firm buys a car of 4 '4 qiiartorod 

 oak liimlicr on grade at the market price. No. 1 common anu firsts and 

 seconds ar<- the grades, we ship the lumber to them, terms two per cent 

 10 days. They receive and unload the car, and after waiting .'iO days 

 take off the discount and pay the invoice In full, never saying one word 

 ahout the lumber being all right. But after they have worked up In 

 their factory seventy-five per oent of the ear of lumber they want to make 

 claim for about the amount of the Invoice price of the car as damage 

 on ,nccount of the slock being a little tiiln, as It had to dress and sand 

 np two sides Td-lnch finish. They state that they never inspected the 

 car and have sustained this amount of damage in working the lumlier. 

 They have about 1,,'jOO feet of the lumber on hand, which we offered to 

 take off their hands and pay them for It before they entered suit. We 

 never had a kick on this stock before, but this Is the first case we have 

 ever shipped these parties. They have entered suit to recover ahout the 

 Invoice price. Of course wc will flght the case and will he glad If you 

 win cite a parallel case, or cite gome precedent If any have been estab- 

 lished. 



H.\RDW0OD Record immeiliatcly ma<le a tliorouyh investigation an<l 

 advised this firm as follows: 



Your letter suggests four questions which are both interesting and 

 of general importance to nearly every manufacturer and wholesale 

 dealer: (1) VThat are the rights of a seller against a. buyer who 

 deducts discount after expiration of the iliseount period? (2) What 

 leeway as to dimensions of lumber is allowable umler contracts of the 

 kind you mention? (3) Didn't your customer waive his rights to 

 claim the damages he now asserts, even if the lumlter clid not come 

 up to the contract? (4) If he has any just claim for damages, how 

 are they to be measured? 



1, It is certain that under the law as applied in most of the 

 states a buyer is entitled to deduct a discount only by complying 

 strictly %\nth the condition as to time of payment, on which the dis- 

 count is allowed. (See Kellogg vs. Barrett, 12 New York Supple- 

 All Three of V» Will Be Benefited if 



inenf, 271, and Stroock I'lush Company vs. Talcott, 1:14 New York Sup- 

 plement, 10.'52. See, also, Cyc, vol. H.5, p. 271.) The |>rimary jirice is 

 the one that governs, unless the buyer jiays up within the time 

 allowed under the discount jirivilege. So after lujiKe of ten days in 

 your case, the buyer had no more right to rieduct 29r than he wouM 

 have had to deduct r>0'^'r before the jieriod expireil. Complaint is niado 

 generally against a growing jirai'tice among buyers to abuse the dis- 

 count i)rivilege just as was ilone in your case. 



Having seen that, in the first place, the discount was improperly 

 deducteil. the (juestion arises: Can you recover the amount of it now? 

 Under the law of most of the states, you would have an undoubted 

 right to either bring an independent suit to recover the discount, or 

 could set the amount u]> against the buyer's claim for damages, inas- 

 much as there are liundreds of appellate court decisions on the point 

 that where an iimount due from one person "to another is fixed and 

 certain, receipt by the creditor of a smaller amount will not prevent 

 recovery of the remainder, even though he gives a receipt in full. 

 The reason for this is that the law iloes not recognize any promise 

 as being legally binding unless supporteil by some consiileration. 

 When a lumber manufacturer accepts flSTr of what is actually due 

 him by express contract, under promise that he will not claim the 

 remaining '2'/r, the law says that the promise is not binding, for he 

 received nothing for making it. But the trouljle in your case is that 

 this general rule of law seems to liiive lieen abrogated tiy statute in 

 North Carolina, and if you expressly or impliedly accejited the payment 

 as full settlement, it is cloubtful if you can now recover the amount 

 of the discount. But, since it will not cost you anything extra to 

 set up the claim, as a counterclaim to the buyer's suit, that course 

 would seem to be desirable. 



2. Did you live up to your part of the contract in the matter 

 of dimensions of the lumber sold? Of course, if you can show that 

 you mathematically complied with your contract to deliver "4/4" 

 lumber that ends the buyer's claim adversely to him. But your 

 attorneys have probably discovereil already that there is strong 

 judicial authority for saying that even if the lumber diil not literally 

 come up to the contract sfieeifications as to dimensions, you still 

 establish your coniidiance with the contract by showing that the 

 lumber delivered was "4/4," as generally understood in the lumber 

 trade. In the case of Litflejohn vs. Gilchrist, .'{ North Carolina 

 Reports, .'lO."?, your court suViscribed to the well-established ilocfrine 

 that well-known traile customs and usages are controlling in inter- 

 preting contracts of sale. Numerous other cases are cited at pages 

 1084 and 108.5, vol. 12, Cyc. It was held in Merick vs. McNally, 



You Mention HARDWOOD RECORD 



