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Pertinent Legal Findings 



Computing Sales Agent's Commission 



A contract employing a sales agent guaranteed him $2,400 a year 

 and one-fourth of the profits derived from his sales by the lumber 

 company which engaged his services. The agreement contained no 

 provision showing the basis upon which it was understood that such 

 profits should be computed, and the company preserved no record 

 showing the cost of producing the lumber sold by him, apart from 

 the cost of manufacturing aU the company's lumber. Under this 

 stale of facts the supreme court of Oregon holds that the profits are 

 to be ascertained by charging against the proceeds of the lumber 

 sold by the agent a proportionate share of the expense covering the 

 company's entire manufacture and of the $2,400 guaranteed com- 

 pensation, (hee vs. North Pacific Lumber Company, 146 Pacific 

 Reporter 131.) 



When Contract Must Be In Writing 



An agreement to sell timber lo be manufactured into certain 

 products is invalid unless evidenced by a writing signed by the 

 party to be bound thereby. There need be no formal instrument, but 

 there must be at least a memorandum showing the essential elements 

 of the contract, including the identity of the parties, the subject of 

 sale, and the price. But an oral acceptance of a written offer con- 

 stitutes a valid agreement. (Springfield, Mo., court of appeals, 

 Carter vs. Western Tie & Timber Company, 170 SouthwOestern Re- 

 porter 445.) 



Assumption of Risk by Employe 

 An employe in a lumber mill assumed the risk of being injured 

 through attempting to push a truck load of lumber over the edge of 

 a rise in a floor, although he did not notice that a plank which was 

 used to make the place even was displaced. (Arkansas supreme court, 

 Sweeney vs. Malvern Lumber Company, 172 Southwestern Reporter, 

 821.) 



When Title Passes to Buyer of Lumber 

 When a quantity of lumber is sold fur delivery to the buyer by 

 railroad the question as to when title passes to him is primarily a ques- 

 tion of mutual intention as shown by the terms of the contract. Or- 

 dinarily, delivery to the railway company will be presumed to pass 

 title to the buyer, but this presumption may be overcome by showing 

 that some act was to be performed by him before acceptance of 

 delivery, such as inspection, measuring, etc. Even after actual delivery 

 by the railway company it may be shown that title did not pass be- 

 cause of rejection of the lumber as not conforming to the contract of 

 sale. (Kentucky court of appeals, G. I. Frazier Company vs. Owens- 

 boro Stave & Barrel Company, 172 Southwestern Reporter 652.) 



Right of Way for Logging Railroad 

 The mere fact that an owner of land has permitted a lumber com- 

 pany to use a strip of it for the purpose of maintaining a logging 

 railroad along it cannot be construed to give the company a perma- 



I nent right of way. Unless there has been a grant of a right of way, 

 it must appear that the strip has been occupied by the company 



' under a claim of legal right for a long enough period to give a right 

 of way by adverse possession. (California district court of appeal, 

 Brandon vs. Umpqua Lumber & Timber Company, 146 Pacific Re- 



: porter 46.) 



Validity of Contract of Sale — Storage Charges 

 When a contract, instead of requiring a seller to deliver a definite 

 quantity of lumber or timber products, provides for delivery of as 

 great a quantity as it is possible to accumulate at a certain place 

 during a given period, there can be no recovery by the buyer for 

 refusal of the seller to make any delivery, since the quantity is left 

 too uncertain, and this is especially so where the quantity which can 

 be accumulated depends upon uncertain contingencies. But where 

 the buyer has not previously repudiated the agreement on this ground, 

 he becomes liable for the agreed price on the seller making a delivery 

 at the contract place. When one agrees to store timber products free 

 of charge he cannot subject the owner to liability for storage charges 



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until he has given reasonable opportunity for removal of the prod- 

 ucts after notice that charges will be made. On the other hand, if 

 the owner permits the products to remain after lapse of a reasonable 

 time for removal after being notified that certain charges will be 

 made, he becomes liable therefor, regardless of whether he expressly 

 agrees to pay such charges. (Alabama supreme court, American Tie 

 & Timber Company vs. Naylor Lumber Co., 67 Southern Reporter 

 246.) 



Conclusiveness of Inspector's or Surveyor's Decision 

 When the parties to a contract for a sale of timber or lumber 

 delegate to a third person the matter of determining quality or quan- 

 tity, or some other question arising under the agreement, his decision 

 is binding upon both parties, in the absence of fraud or such gross 

 mistake as implies bad faith or a failure to exercise an honest judg- 

 ment. (United States circuit court of appeals, eighth circuit; Frisco 

 Lumber Company vs. Hodge, 218 Federal Reporter 778.) 



Adjustment of Dispute Under Millwrork Contract 

 Defendant company gave an order to plaintifiE company for the 

 manufacture of doors, sash, transoms, etc., out of "western pine," 

 and plaintiff accepted the order, but manufactured the articles out 

 of spruce. The work was shipped to defendant, but delivery was 

 accepted under protest, with reservation of the right to claim deduc- 

 tion from the agreed price. Plaintiff refused to agree to a deduction, 

 claiming that "western pine" and "spruce" were synonymous. 

 Later, however, it was agreed that the original price be paid, less 

 the deduietion, and that defendant's right to a deduction be left to 

 determination by arbitration or litigation. On these facts the Louisi- 

 ana Supreme Court decided in the case of Huttig Sash & Door Com- 

 pany vs. Allen Manufacturing Company, 67 Southern Reporter 340, 

 a suit to recover the unpaid portion of the agreed price, that defend- 

 ant waived its right to receive the work under protest, by entering 

 into the last agreement mentioned. 



When Fire Excuses Delivery of Lumber 

 Defendant agreed to ship 58,000 feet of No. 1 maple flooring to 

 plaintiff, the contract containing the provision: "All contracts are 

 contingent upon strikes, fires, breakage of machinery and other causes 

 beyond our control." Before any of the flooring had been manu- 

 factured or delivered, defendant's mill was destroyed by fire, with- 

 out fault on defendant's part. Defendant thereupon claimed release 

 from the contract under the provision quoted, and plaintiff sued to 

 recover dSfnages as for breach of the contract to deliver the lumber. 

 The trial tourt decided that there could be no recovery, and this de- 

 cision has just been approved by the supreme judicial court of Massa- 

 chusetts (New England Concrete Construction Company vs. Shepard 

 & Morse Lumber Company, 107 Northeastern Reporter 917). The 

 latter court says : ' ' The agreement is not an absolute contract by 

 which the defendant agreed to furnish the flooring to the plaintiff, 

 but was subject, to certain conditions, including the condition that 

 the contract was contingent upon fires; that is to say, the defendant 

 was excused from performance in the event of the happening of any of 

 the contingencies set forth in the contract. • » » The effect of 

 this clause was not to extend the time of performance beyond the 

 time limit, but wholly to relieve the defendant from the obligation 

 to furnish the flooring called for by the contract. » » • The mill 

 having been destroyed by fire, the defendant is wholly relieved from 

 performance; at least, in the absence of evidence to show that the 

 fire was the result of its willful and intentional wrong, or that of 

 its servants or agents. ' ' 



Recovery of Excessive Freight Charges 

 Suit cannot be maintained in a state court to recover against a 

 railway comjjany on the theory that freight charges collected on 

 interstate shipments of lumber were excessive, if the rates charged 

 conformed to published tariffs, and no order for a refund or repara- 

 tion has been made by the Interstate Commerce Commission. (Ne- 

 braska Supreme Court, F. A. Foster Lumber Company vs. Union 

 Pacific Railroad Company, 151 Northwestern Reporter 168.) 



