\^C<^cy.'^:-t5^:>30^j^:;wx^^^^owxy:w^^ 



w 



Pertinent Legal Findings 



Rights of Non-Resident Corporations 



The scope of tlie power of a state to ijrescribe couJitions limiting 

 the riglit of a lumber company organized under the laws of one state 

 to do business in another was involved in a decision which was lately 

 handed down by the United States supreme court (Sioux Eemedy 

 Company vs. Gope, 35 supreme court reporter 57). The gist of the 

 decision is that, although a state may prescribe limitations upon the 

 right of a non-resident company to carry on business which is wholly 

 executed within the state, as where a contract is made in a given 

 state for the delivery of a quantitv of lumber there, no valid restric- 

 tions can be placed on the right of such a company to accept an order 

 at its home oflSco for delivery at the shipping point or the destination, 

 since that constitutes an interstate commercial transaction over which 

 Congress has exclusive jurisdiction. In the cases cited, suit for the 

 purchase price of goods sold under an interstate transaction was 

 defended on the ground that plaintiff, a foreign corjjoration, had 

 no right to sue, because it had not complied with the requirement 

 concerning the appointment of a resident agent fixed by the law of 

 the state. The supreme court of South Dakota upheld this defense, 

 but, on plaintiff 's appeal, the United States supreme court reversed 

 the decision, holding that plaintiff not only had the right to do inter- 

 state business in South Dakota, but, as an incident of it, could sue 

 there to recover the amount due it under the transaction. 

 Unsafe Appliances — Excessive Damages 



An employer who negligently furnishes a defective appliance for 

 opening a clogged chute (in this case a jointed pole) is responsible 

 for injury to an employe resulting in consequene of such defect, if 

 the employe was in the exercise of ordinary care for his own safety. 

 But $6,500 is excessive recovery for injury to an employe, consisting 

 in loss of an eye, and the recovery is properly reduced to $3,500, where 

 it appears that he was able to earn as much money after the acci- 

 dent as before, although he sustained a nervous shock and expended 

 $300 for medical attendance. (Maine supreme judicial court, Dudley 

 vs. R. P. Hazzard Company, 92 Atlantic Keporter 517.) 



Liability for Contractor's Negligence 

 When a lumber company awards a contract to a builder for the con- 

 struction of a building (in this case a lumber dry kiln), it is liable 

 for injuries to third persons caused by a defect in the plan of work 

 (here a wall of the kiln fell, killing workman because of weakness 

 of the foundation in a particular under control of the lumber com- 

 pany). But where a contractor is left free as to the details of per- 

 formance of his contract, employing his own men and being responsi- 

 ble to the company merely for the completion of the structure called 

 for by the contract, the company cannot be held responsible for in- 

 jury to third person resulting from negligence of the contractor in 

 a matter under his control. (North Carolina supreme court, Embler 

 vs. Gloucester Lumber Company, 83 Southeastern Reporter 740.) 



Liability for Fall of Timber 

 The mere fact that an employe was injured while assisting in 

 carrying a heavy timber, through a co-employe permitting his end 

 to drop without warning does not establish negligence imputable to 

 the employer so as to entitle the injured worker to recover damages. 

 The employe has the burden of establishing some aflSrmative act of 

 carelessness. The fall may have been unavoidable in the exercise of 

 ordinary care. (Kansas City court of appeals, Neth vs. Delano, 171 

 Southwestern Reporter 1.) 



Rights Under Bills of Lading 

 To concerns which buy lumber in carload lots by taking assignments 

 of bills of lading covering shipments already made, a decision handed 

 dovm recently by the Kansas supreme court will prove of interest. 

 In this case (Harold vs. A. T. & S. F. Ry. Co., 144 Pacific reporter 

 823), it is held that, although, as between a shipper and the railway 

 company, the recitals of a bUl of lading are not conclusive against 

 the facts as to the date when the shipment was received or the 

 quantity of freight delivered for transportation, an innocent trans- 



feree of the bill of lading in the usual course of business has certain 

 rights which would not be open to the shipper. Thus where plain- 

 tiff took an assignment of a bill of lading, which showed a shipment 

 from a certain point on a certain date, whereas in fact the shipment 

 was made at another time and place, he Was declared to be entitled 

 to recover damages for delay in delivery of the shipment over the time 

 that would have been required under the bill of lading as drawn. 

 After citing a case where a railway company has been held respon- 

 sible to a transferee of a bill of lading for the value of a shipmeift 

 called for by the bill of lading but never actually shipped, the su- 

 preme court said : 



' ' Nor is there any difference in the legal consequences flowing from 

 the issuance of a bill of lading without the receipt of the goods at 

 any time and one issued before the goods are received provided a 

 loss falls upon the transferee in the usual course of business as a 

 direct consequence of the misstatement. ' ' 



Acceptance of Lumber Shipments 



The Nebraska supreme court has just been called upon to determine 

 whetlier the act of one who contracted for the purchase of lumber in 

 attempting to dispose of a shipment, after giving notice to the seller 

 that it was rejected for failure to come up to specifications, amounted 

 to an acceptance and a waiver of such rejection. The decision was 

 announced in the case of Columbia River Door Company vs. H. F. 

 Cady Lumber Company, 149 northwestern reporter 798. The suit 

 was brought to recover the price of a carload of lumber sold by 

 plaintiff to defendant and shipped to a third person, and was 

 defended on the ground that the shipment had been rejected. Judg- 

 ment was awarded in favor of defendant on the ground that, although 

 defendant did attempt to dispose of the lumber, this was done under 

 instructions from plaintiff to ' ' use to the best advantage. ' ' As sup- 

 porting the decision, the Nebraska supreme court cites the following 

 authorities : 



In Schwartz v. Church of Holy Cross, CO Minn. 183, 62 N. W. 266, 

 plaintifr sought to recover for the value of certain altars which had been 

 ordered constructed and placed in the church. It was held that the use 

 of some of the altars, after defendant's refusal to accept them .beciuse 

 they were not manufactured according to specifications, did not amount 

 to an acceptance, and a judgment for the defendant was affirmed. 

 * * * In Creighton v. Pacific Coast Lumber Company, 12 Man. (Can.) 

 546, it was said : ".X purchaser of goods ordered to be sent by the railway 

 does not lose his right of rejecting the goods by unloading them from 

 the cars on arrival and teaming them to his own premises, if he finds 

 them to be inferior to what he had ordered and so notifies the vendor 

 within a reasonable time." In .\rmstrong v. Columbia Wagon Company, 

 Pennewill 274, 66 Atl. 366 (Del.), we find the following language: 

 "In an action for the price of a carload of lumber, it was not material 

 whether defendant knew that it came from plaintiff or not before unload- 

 ing the lumber, as he had the right to unload and inspect it for the 

 purpose of determining the quality and quantity." 



Breach of Contract to Sell Lumber 

 In a suit to recover damages for claimed breech of a contract 

 to sell a quantity of lumber (Gourley vs. American Hardwood Lum- 

 ber Company. 170 Southwestern Reporter 339), the St. Louis court 

 of appeals recently announced the following rules of law as being 

 applicable to such cases: 



1. Only such damages are recoverable as were within the contemplation 

 of the parties at the time the contract was entered into. Therefore, when 

 one breaks a contract to deliver lumber, he is not liable for special damages 

 accruing to the buyer through his inability to use the lumber for some 

 special purpose not disclosed to the seller when the contract w«s entered 

 into. 



2. In case of such a breach, the buyer must reduce his damages as 

 much as can be reasonably done, by purchasing the required lumber else- 

 where. He need not purchase in the nearest market, geographically speak- 

 ing, if there is no marliet at the contract place of delivery for the particular 

 lumb<^r to be bought, but he must buy in that which is the most available, 

 considering price, delivery, etc. 



3. When a buyer rejects a lumber shipment as not conforming to that 

 shipped, he is entitled to recover for all reasonable expenses incurred in 

 connection with it, including freight paid, unloading charges, and the cost 

 of cross-piling at seller's request, to protect the lumber. 



— 27 — 



