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Pertinent Legal Findings 



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nftit* /«•■*. /i inil tfii 



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Waiver of Breach of LogginK Contract 



Altliuii|>li n Iniiiluniii'r iimv nitivc tin- tih-ht t<> ijinil ii miitnirt for 



rulliiit', inilhni; nnil iilii|inu'iit uf tiiiiU'r on lii!< IiiikI, )■>' iu-ff|itiii|{ 



iMiapfilo undrr llip cuutrnrt iliiriiit: rr.«>iitiiiii of tlii' rutitrurt work, 



lie may aawrt «uli«oi|tipnt brrnrli uf thf iniitrurt aa juHtilirntioii for u 



(Cnliforiiiu Miprrnio ootiil, WiMxIiird vn. (ili'invcmd l.iliii 



,iij. I.'i.l I'Biitii- Kf|MirliT, W.'il.i 



Waiver of Surety Bond Clause 



A HiirHy roiiipiiiiv iiiiiv t>o licM liiiMc mi .'i huiid iiiiUMiiiiifyinK an 

 om|>lo,vt-r nKniii'it Ion." Ihruuuli Inrot-iiv ur <'iiilMT7.lriiii-iit liv iiii (■inpluyi*, 

 nlthuu|!h tlio IkiikI wji* not hiijni'il l>y Uif oniplciyi" iik ri'cuiirod liy a 

 elaiiM< in the |>oliry. if it ap|>cnrH tlint tlic coinpany iutPiuloil tu 

 waivo roDipliniirc iritli thi< i-lnuw>. ^Oklntiomii Niipronw court, Okln- 

 homa 8aali & l>oflr (Vimpiiny Vfi. American DoiiiUng Coinpany, IS.'I 

 Pacific Ro|>ort(>r, ll."il.i 



Breach of Sawmill Leases 



III nn action for il:iiiia);r!< for ilainii'il wron^fiil cvictioii of a 

 InowH- of a Hawinill, the Maine itupn-ine jinlicial court declarcil recently 

 that Uio ordinary nieanure of ilanui|!0 in nucli cases is tlie excess of 

 the rental value of tJie preniines aliovc the agreed rentiU. but tliat 

 in a proper cane the tonant may recover for profits lost in consc- 

 qupDCP of the wrongful ejection. There must lie definite proof, 

 however, from nhich hucFi Iohs can \ie reasonably well ascertained ; 

 an awaril will not !«■ made on mere conjecture. ( Hrowii vs. Linn 

 Woolen Company, Jiri Atlantii- K<'porter, 1037. ) 



Excuses for Non-Performance of Contract 



One who has entered into :i rmitrait Inr iii;iiinf:nture of lumber 

 proilucts cannot excuse non.|>erfomiance on the ground that perform- 

 ance was prevented by weather conditions or by unexpected increase 

 in the cost of timber to be used, in the absence of a clause in the 

 contract excusing |icrformance on those grounds. (Kentucky court 

 of appeals, Runyan vs. Culver, 181 Southwestern Reporter, 640.) 



Remedy on Breach by Buyer 



When a buyer's contrait to buy IiiiijImt to I e specially inanufac- 



turt'J for him reserves tii him the right of inspection, title remains 



in Uie seller until acceptance by the [>urchaser, and when the latter 



refuses to accept delivery on re[>ort of his inspector, the seller's 



remedy, if any, is a- claim for damages for breach of the contract, 



.ind not a claim for the agreed purchase price. (Texas court of civil 



■lis. Price vs. J. B. Fairclotli & Company, 181 Southwestern 



■ Iter, 707.) 



Authority of Lumber Company Managers 

 It is within tlie implied powers of one who is vice-president, 

 secretary and manager of a lumber company to buy an account 

 register for use in the company's business. The office of general 

 manager of the business of a corporation implies authority in him 

 •o do such acta as are necessary in the usual course of the business 

 • arrio<l on by the corporation. (Indiana supreme court, American 

 Case i Register Company, 110 Northeastern Reporter, 196.) 



Sufficiency of Demand for Cars 

 Missouri, like several other states, has a law in force which imposes 

 a penalty against a railway company in favor of shippers of $1 

 a day for every day's delay in furni.shing each car demancled for use 

 in transporting goods, after lapse of a certain time after written 

 application is made for the ear. In the recent case of Raper vs. 

 Lusk and others, receivers of the St. Louis & San Francisco Rail- 

 road Company, brought to recover damages growing out of failure 

 of the company to furnish plaintiff with cars on which to ship lum- 

 ■ber from certain stations on the railway line, the defendants set 

 ■up as a defense that no written demand for the cars was made, al- 

 though it appears that the proper station agents were verbally noti- 

 fied to furnish the cars. It was not denied by the railway company 

 that under the common law a railway company is bound to furnish 

 cars on verbal demand, but it was claimed that the common law 



—20— 



rnir <i« II <' nppllcd to litmbetimg and altird Itiiliflrtea tNII b« ofrrti proper rrprri 



• utHiii ItM'iilili. Thrrc utit Ur nu thmyt for auftt Mrrrirr, but II.miiiwimiii l(ii-<iiin 



• t iliDiunallHU name or IdciiIIuh o/ inv«<Hr« imlrM (pOfl/l<<ailv rramafrd not (o do «o. 



nnii xuperscded by thi- statuti' mentioned above. Thin defeniu- in 

 uverruleil by the Springlield court of appeals in nn opinion which 

 holilK thnt the Kinlute merely nlTords shipix'rR nn adilitionul remedy 

 in caHv of wrongful failure tu furniAh cars, where written demand 

 in made, and docM not abrogate Ihq former remedy by claim for 

 ilamngpN where a verbal demand for cars is not complied with. (181 

 .Soiilliwestern H.-portvr. UKIL'.) 



Confusion of Timber Products 



There is nn imporl.int leyal priiiriple wliirh has often Ijoen applied 

 by the courts in cases where logs or IuiiiIht of two or more owners 

 liave liecome inteniiinglcd. It has become a well nettled rule of law 

 tliut if the intermixturo is cauned by one of the {laitios intentionally 

 and fraudulently, ho forfeits all his share in tlie confused miuw unions 

 he is able to clearly establinh the proportion of his ownership of the 

 whole. This rule and nomo of its qualifications have just been dis- 

 cussed by the Minnesota supremo court in a case wherein plaintiff 

 unsuccessfully sought to hold 2,000,000 feet of lumber in defeminnt's 

 yards on tho theory of such confusion of lumber inanufactiire<i from 

 logs of both parties as gave plaintiff title to the whole mass. 

 (International Lumber Coinpany vs. Bradley Timljcr & Railway Sup- 

 ply Company, l.ie Northwestern Reporter, 274.) 



Defendant admitted that n few logs l)elonging to plaintiff had 

 become intermingled with defendant's in a stream in whicJi they 

 were all floated and that they had been inadvertently sawed info lum- 

 ber, but claimed that all reasonable steps were taken to avoid con- 

 fusion and that the value of plaintiff's logs so taken was incon- 

 siderable, for which jiaymcnt was t*'ndcred. On tho other hand, 

 ]ilnintiff asserted that tho quantity was large, but so uncertain as to 

 entitle ]>Iaintiff to a forfeiture of the whole intermingled mass under 

 the law of confusion of goods, whether the confusion was willfully 

 caused or resulteil from mere negligence. The trial court decided tho 

 case in defendant's favor and the supreme court aflirtneil it on 

 appeal. 



The higher court found it unnecessary to rule positively on tho 

 question whether a forfeiture of logs or lumber can be based upon 

 mere negligence, since it was found that plaintiff had consented that 

 the case bo tried on the theory that proof of wilfulness on defend- 

 ant's part was es.«ential to recovery, and that there was sufficient 

 evidence to sustain tho jury's finding that the intermingling was not 

 wilfully caused. But the decision on appeal strongly intim.ates that 

 the true rule of law is that where the confusion results from acci- 

 dent, mist.ike or negligence, but without any fraudulent intent, the 

 jiroperty in the mixture does not pass to the several owners, but 

 that the parties own the mass in common according to their re- 

 spective interests. On the (lucstifm of wilftiliM'ss flic supreme court 

 said: 



If It app' iircl tlint ii.^i.-ii.i:iiii wuiuuv ^in.i iniihliih^nuy mixed plnlntlfT's 

 lumlicr with Its mvn. wllh th<- result that there was an lni<\lrlcalile 

 fonfuslon of goods. platntllT would liavi' Im-ch fntltl<*<l to n*<-ovcr the 

 i-nllrc ninss, unless di'fcndant was iihW to dlsthik'ulsh lis property 

 spi-rlflcnlly. • • • iJut, bcfnri- Mils rule Is npplirnlili'. It must be 

 siif»wn. not only that there Is n ''onfuslon of goods, but that the Inter- 

 inlxlni: was don<- wilfully, and witli fniudnlcnt Intent. -Vnd the liurdca 

 of proof Is with plnintllT on both of these Issues. 



Counterclaims for Breach of Warranty 



In .1 suit to recover the price of luinber, defendant interposed a 

 coiinterelniin of damages on the theory of a breach of warranty as 

 to the quality of the lumber delivered. The trial court upheld plain- 

 tiff's contention that defendant's acceptance of the lumber defeated 

 his right to recover damages, but in a decision handed down recently 

 by the appellate term of the New York supreme court, to which 

 ■Icfendant took an appeal, the higher court decided that, under tho 

 statutes of New York relating to the sale of goods, defendant was 

 entitled to counterclaim damages for breach of warranty, he having 

 promptly notified the selling plaintiff of the defects complained of. 

 (English Lumber Company vs. Smith, ]o7 New York Supplement, 

 233.1 



