October 10, 1918 



Queries on questions arising on any points involving the law as it is applied to lumbering and allied industries mill be given proper expert 

 attention through this department if submitted to Hardwood Record. There will be no charge for such seriHce, but Hardwood Recobd 

 •i-eserves the right to publish questions and answeri without designating names or location of inquiries unless specifically requested not to do so. 



Insuring Lumber Against Fire 



A policy insuring lumber in a North Carolina yard contained a 

 condition requiring a ' ' continuous clear space of 200 feet * « ^ 

 between the property hereby insured and any woodworking estab- 

 lishment," etc. The insurance company unsuccessfully resisted 

 liability for loss of the lumber on the ground that there was an 

 open-shed sawmill within 200 feet of the lumber. It appeared that 

 tlie mill had not been operated several days before the lire, and 

 had been shut down with intention to remove it. 



In passing upon the case, the North Carolina supreme court 

 decided the ease in favor of the insured owner of the lumber, hold- 

 ing that even if a sawmill could be regarded as a "woodworking 

 establishment" within the meaning of the condition in the policy, 

 still the contract must have contemplated a live plant and not a 

 dead mill. The decision is fortified by a reference to the fact that 

 tlie origin of the fire bore no relationship to the mill. 



The court indicates in its opinion, however, that even a live 

 sawmill is not a "woodworking establishment;" holding that that 

 term, in the light of common understanding, is limited to a plant 

 using complicated machinery and the carpenter's or joiner's art 

 in the production of objects made of wood, and does not include 

 the cutting of logs into rough lumber. (Smith vs. National Firo 

 Insurance Company, 95 Southeastern Reporter, 562.) 

 Performance of Optional Contract 



In the case of Magnuson et al. vs. Stiehm, 168 Northwestern 

 Reporter, 613, the North Dakota supreme court held that, under 

 a contract giving defendant the right to buy from plaintiffs all 

 the lumber needed by them for certain purposes, at a siDecified price, 

 the plaintiffs were not bound to keep on hand any specific kind of 

 lumber, none being specified in the contract. The court holds that 

 the agreement should be interpreted as giving defendant the privi- 

 lege of purchasing from the plaintiffs such lumber as defendant 

 desired to purchase and plaintiffs had on hand. 



Collecting for Special Manufacture 



If defendants manufactured lumber for plaintiffs under a special 

 contract, and the latter refused to inspect it, the former were 

 entitled to recover the agreed price notwithstanding provision in 

 the contract to the effect that the plainifEs should inspect the' lum- 

 ber before delivery by defendants. (Kentucky court of appeals, 

 Maynard et al. vs. Borani et al., 202 Southwestern Reporter, 863.) 



Breach of Lumber Sales Contracts 



The suit of Melnturff vs. Arkansas Short Leaf Lumber Company, 

 203 Southwestern Reporter, 1047, lately passed upon by the Arkansas 

 supreme court, involved the rights of the parties to a verbal con- 

 tract for a sale of white oak timber, part of which defendant 

 refused to deliver on development of a misunderstanding as to tlie 

 price to be paid. 



The court holds that the agreement, though verbal, was rendered 

 valid because it represented a single obligation and because it 

 appeared that it was partly performed by the parties by the ship- 

 ment of eight cars of lumber to the buyer. This part performance 

 took the entire contract outside the Arkansas statute, which requires 

 sales contracts to be in writing when involving more than a cer- 

 tain amount, excepting where there is partial performance of the 

 agreement. 



On another phase of the case, the court holds that if defendant 

 agreed to deliver lumber of certain grade at $26.50 per M. feet, but 

 later demanded .$27, the plaintiff's payment of the higher price to 

 secure delivery 'Would have precluded subsequent recovery of the 

 .lOc overcharge. Nor was plaintiff bound to accept delivery at the 

 higher price, in order to minimize its recoverable damage. Rejecting 

 defendant's demand of increased price, plaintiff was entitled to 



—so- 



base recovery of d.anKiges on the difference between the contract 

 and the market v;iliies, the court decides. 



Forfeiture of Timber Rights 

 A deed to standing oak timber on land reserved by the grantor 

 specified no time within which the timber must be removed by the 

 purchaser. Hence, the law implied a mutual understanding that 

 the removal would be effected within a reasonable time. And the 

 buyer cannot avoid a forfeiture of his rights for failure to cut the 

 timber within that time, on the ground that the power of his saw- 

 mill was inadequate to cut oak lumber. (Arkansas supreme court, 

 Young vs. ("owan, 204 Southwestern Reporter, 305.) 

 An Invalid Mortgage 

 A mortgage of a lumber mill and stock of logs and lumber, exe- 

 cuted in consideration of advances of money made by the mort- 

 gagee to the mortgagor, and purporting to permit the mortgagor 

 to work up the logs on hand, dispose of the product, and, after 

 paying his expenses and retaining, a weekly salary, to purchase 

 other logs for manufacture, which also were to be subject to the 

 lien of the mortgage, is invalid as being in fraud of the rights of 

 the mortgagor 's general creditors. 



"Let the Buyer Beware" 

 The legal principle of law designated by the Latin term "caveat 

 emptor," and judicially defined as meaning, "Let the buyer 

 beware," was applied lately by the Alabama court of appeals in the 

 ease of Dishman vs. Griffis, 77 Southern Reporter, 961, to an instance 

 in which lumber was sold subject to inspection and grading by the 

 parties. There having been such inspection and grading, the court 

 holds that the buyers were in no position to afterwards claim dam- 

 ages on the ground that there was an implied warranty of the 

 quality, fitness or condition of the lumber, and a nonfulfillment 

 of this warranty. 



Libelous Trade Circulars 

 Upholding judgment in an action for libel passed upon the send- 

 ing out of circulars headed " Catehum and Skinnem, " and con- 

 taining derogatory statements concerning a concern's business deal- 

 ings, the United States Circuit Court of Appeals for the Fourth 

 Circuit lately said in the case of S. P. Calkins & Co. vs. Shryook, 

 248 Federal Reporter 649: 



A written ]iuMl< ;i ii"ii, wliicli affects one injuriously in his trade or call- 

 ing and coiit.ii: i.:;.i 1 ;i 11- against his honest.v and integrity, and which 

 .ximate consequence occasion pecuniary loss, 

 isi' of action and is libelous: and the right 

 iiust be iiri'snnicri to ijroximately and neces- 

 I i.ii ii'i libel, if the docu- 

 r 1 r course — damages of 

 1 ' ii'K upon the circum- 

 '! ' ii(i;int, the offensive 

 nil. I party, the number of 

 lilicl, initependent of any 



would 



follows to sui li it:i III.: 



sarily result u-.im such a publication, 

 ment be libelous, then damages follow : 

 some amount. The extent of those il. 

 stances of the case, such as the mali 

 character of the libel, the pain caused t 

 publications, the general circumstances 

 actual specific loss on each publication. 



Right to Reject Goods Bought 



There is a well established rule of law that, although a buyer 

 is entitled to refuse to receive goods which fail to come up to the 

 standard fixed by his contract of purchase, his retention of them 

 after discovering an objectionable condition waives any right 

 to have the purchase cancelled. And, having waived this right 

 to a cancellation, the buyer is not entitled to defeat recovery of 

 the purchase price, although he can counterclaim for damages sus- 

 tained through any breach of warranty on the part of the seller. 



This last stated principle was applied recently by the Mississippi 

 supreme court in the case of Lumbermen's Supply Company vs. 

 Poplarville Sawmill Company, 78 Southern Reporter, 157. In this 

 case defendant resisted liability for the purchase price of a power 

 belt on the ground that it proved to be unsuitable for tlie use for 

 which it was sold, on account of a defective union. But, deciding 

 the case in plaintiff's favor, the court holds that any such defect 



