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February iO, lUlO 



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Pertinent Legal Findings 





Buyer's Right to Deduct I-'reight Rate 



A Missouri lumber miuiufacturini; cuiii|iiuiy rcquestn uur opiniOD 

 ' • as to whether a cimtoincr buying a cai of lumbor f. o. b. Chiengo, 

 III., rato and diverting it to Milwaukee, Wis., has tlic ri);ht to deduct 

 riit«< when his own order reads f. o. b. Chicago, on 

 .'. if tlie car had moved from n cortain point the rato 

 Xu Milwuuki-v would have been tlic Chic nr the same as the 



Chicago rate, whereas our sliipnient in^' i ajiothor point to 



Chicago and tlie rato from Uiat point to Milwaukee was SVi cents 

 over Chicago rate. We wore never advited that idlwaukee was the 

 'inal destination and the order did not mention anything that would 



'■ i/tftiiff other than that Chicago tras the final destination; 



■y we only protected rate to that point. The consignee 

 ■ ' • -"inch as we have operations at point A we should 



.\, :.■ >' : .1 from there because the rate from there to Mil- 



waukee is the same as to Chicago, but Milwaukee never having been 

 mentioned to us in this case we made shipment from point B where 

 we had the stock wanted and from where we could protect the Clii- 

 ■■ago rate in accordance with the order. The amount involved is only 

 ■?13.90, but before establishing a precedent by allowing it after being 

 in tlie lumber business thirty years we would like your opinion as to 

 whether wo are responsible for this freight or Uio consignees of the 

 car. ' ' 



AsswEE, — On the facts stated, I am clearly of the opinion that the 

 consignees have no right to deduct on account of the rate to Mil- 

 waukee over Chicago. I rest my opinion on the fact that the lumber 

 was sold f. o. b. Chicago as the apparent final destination. 



A contract of sale, like every other agreement, must be interpreted 

 in the light of the mutual understanding of the parties, and here the 

 contract was plainly for delivery at Chicago, and the buyer is just 

 as much liable for the extra expense of diverting the shipment from 

 Chicago to Milwaukee, after delivery was made to him in Chicago, 

 as he would have l>een for reshipment abroad. 



If, however, it was agreed that the consignees were to be held 

 directly or indirectly liable for the freight charges from the place 

 of shipment to Chicago, it is to be presumed, in the absence of 

 mutual understanding to the contrary, that the shipment would not 

 be made from any point more remote from Chicago than the seller's 

 place of business, to which the order was addressed. If the seller 

 stands the freight charges to the place of delivery, it is of no con- 

 cern to the buyer whence the shipment is made, so long as the lumber 

 is delivered within the agreed time and is of the contract grade. 

 But if the buyer is to bear the charges directly or indirectly he is 

 entitled to assume, in the absence of agreement to the contrary, that 

 those charges will not exceed the rate from the seller's place of 

 business or from the place where it is mutually understood the lum- 

 ber is to be loaded for shipment. If the seller enhances the cost of 

 the lumber to the buyer by shipping from a point not mutually con- 

 templated by the parties, the seller must bear tlie excess of the rate 

 over what the freight would have been had shipment been made 

 from a point contemplated by the parties when the contract was 

 entered into. 



Receivers for Lumber Companies 

 A creditor of an insolvent lumber company is entitled to have a re- 

 ceiver for it appointed on proof of mismanagement of the affairs of 

 the company, endangering plaintiff's claim. (Louisiana supreme 

 court, American Lumber Company vs. Day Brick & Lumber Company, 

 69 Southern Beporter, 853.) 



Time for Removing Timber Purchased 



Under a conveyance of timber, to be removed by the purchaser "as 



expeditiously as possible, ' ' on condition that unless the timber should 



be removed within fifteen years the buyer should pay taxes on the land 



until removal, he was not entitled to the full fifteen years in which to 



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remo\'0. And, on assignment of thu iiurcha»cr's right tu a third party, 

 the time must be measured by the capacity of the original purchaser 

 to remove the timber "as expeditiously as possible," rather than by 

 the assignee's capacity. (Arkansas supreme court, Louis Werner 

 Sawmill Company vs. Scssoms, 179 Southwestern Reporter, 185.) 



Logging Contractor's Lien 



A contractor who cut, hauled and rafted logs for a lumber com- 

 pany was held by the supremo court of North Carolina to be entitled 

 to a lien upon the logs for personal labor under the first of the fol- 

 lowing quoted laws of the state, and as a contractor under the second: 

 "Every person doing the work of cutting and sawing logs into lum- 

 ber, getting out wood pulp, acid wood, or tanbark, shall have a lien 

 upon the • • • lumber for the amount of wages due them, and 

 the said liens shall have priority over all other claims or liens upon 

 said lumber, except as against a purchaser for full value and without 

 notice thereof. ' ' 



"Every building built, rebuilt, repaired or improved, together 

 with the necessary lots on which such buildings may be situated, and 

 every lot, farm or vessel, or any kind of property, • • • not 

 herein enumerated, shall be subject to a lien for the payment of all 

 debts contracted for work done on the same, or material furnished." 

 (Thomas vs. Merrill, 86 Southeastern Reporter 595.) 



Loss of Undelivered Lumber 



In law there is an important distinction to be drawn between p.assing 

 of title to lumber sold and its actual delivery; both are often con- 

 current, but passing of title may precede actual delivery. The im- 

 portance of the distinction is illustrated by a recent case passed upon 

 by the Michigan supreme court — Germaine vs. Loud, 155 Northwestern 

 Reporter, 373. 



There was a contract for the purchase of certain lumber. The buyer 

 made an advancement upon the price. The lumber burned. The buyer 

 sued to recover his advancement. The seller claimed that the title 

 to the lumber had passed to the buyer, and asked for a judgment for 

 the balance of the purchase price. In affirming judgment in defen- 

 dant's favor on the ground that the evidence showed that title had 

 passed to tho buyer according to mutual understanding, the court said: 



Unless the parties to n contract for the sale of porsnnal property, not 

 paid for and not delivered, have speclflcilly agreed that the title thereto 

 shall or shall not pass, the question whether title lias passed to the liuyer 

 is one of Intention, to be gathered from all the circumstances attending 

 the bargain. It Is a question of fact, to be answored hy ronstriiril«in of 

 whatever agreement was made. 



Rights in Floating Logs 



In lately deciding that an owner of logs was not liable for entering 



private land to release logs which had lodged against an abutment in 



floating down a stream, where no appreciable damage resulted to the 



owner of the land, the Maine supreme judicial court said: 



The stream, as we have seen. Is floatable, and as such may lawfully be 

 used as a public highway upon which to lloat loss. The riparian owner 

 (owner of land bordcrlnj stream], too. has the rlKht to the use and enjoy- 

 ment of his jiroperty. But the rlshts of the public to use a floatable stream 

 and those or the riparian owner to use bis land are both to be used with a 

 proper regard for the existence and preservation of the other. The riparian 

 owner's use and enjoyment of his pr<rpi>rty ad.1acent to a floatable stream Is 

 In a sense subject to the use of such stream by the public for the floating 

 of logs, If reasonably exercised. He Is bound In the use of his property 

 not to obstruct the reasonable use of the stream for such purpose. The 

 log driver also in using such a stream for the passage of his logs Is 

 required to exercise reasonalile care to prevent doing damage to the 

 property of the riparian owner. If these respective rights are so exer- 

 cised then no substantial prejudice or Inconvenience will result. • • • 

 Here then Is a case. In the most favorable view for the plalntllT. where a 

 log In its passage down a floatable stream, without fault of tho driver. Is 

 caught on the edge of the riparian owner's property, and the driver 

 casually and from incidental necessity enters upon such property and 

 releases the log. doing no appreoLible damage. For such an act does an 

 action for trespass lie? We think not. (Clark vs. Gllman, 05 Atlantic 

 Reporter, 1032.) 



Authority of Corporate Representatives 



Power of a representative of a lumber company to agree to a 

 modification of a contract for cutting and hauling logs may be inferred 

 from the fact that he previously exercised such authority and that his 

 acts were ratified by the company. 



