«;BOTaimijtia:mi)sw!»TOi)i^^^ 



Lumber Shipper's Eight to Transportation Facilities 

 What legal remedies has a shipper of lumber against a railway 

 company for refusal to furnish him cars or other shipping facilities? 

 This important and interesting question occasionally rises when the 

 carrier's refusal is arbitrary, but more frequently in times of ear 

 shortage. 



It is well-settled law that every raUway company which undertakes 

 to carry general freight must accord equal privileges to all shippers 

 on the same terms. So a carrier which maliciously refuses to furnish 

 ears for the transportation of lumber or other commodity, merely 

 because the shipper has previously favored a competing road, or 

 refuses to make all of his shipments over the line, subjects itself to 

 liability to him, not only for all damages resulting as a natural 

 consequence of the refusal, but, also, may be held for punitive 

 damages. But, in the absence of malice, the award must be limited 

 to actual damages. A railway company may enforce any reasonable 

 regulation governing shipments. Thus it may refuse to move freight 

 untU the charges are prepaid, but the shipper 's failure to tender pre- 

 payment does not justify refusal to furnish cars, if advance payment 

 is not customarily demanded. And it has been decided that a 

 shipper's previous delay in unloading freight does not excuse refusal 

 to allot cars to him. 



An unprecedented press of traffic which could not reasonably have 

 been foreseen excuses a railway company's failure to have enough 

 rolling stock to promptly move all freight offered, but there are 

 many court decisions to sustain the statement that in such cases 

 available cars must be fairly distributed among shippers; the com- 

 pany may not fill all the requisitions of a favored shipper, and then 

 justify refusal to furnish any cars to another on the ground of 

 shortage. But when a carrier contracts in advance to supply a 

 certain number of cars at a certain time and place to move logs, 

 lumber or other freight, it cannot avoid liability for breach of the 

 contract on the ground that the agreement gave that shipper an 

 advantage over other shippers, unless he was thereby given an undue 

 preference. 



Proper demand for cars must, of course, be made before ths carrier 

 can be held responsible for failure to supply them. For instance, 

 demand made upon a station agent to furnish cars at another point 

 does not bind the railway company. And, if the carrier's rules re- 

 quire requisition for cars to be in writing, an oral demand is in- 

 sufficient, unless it appears that the rule has been customarily dis- 

 regarded. It is to be noted, however, that under the reciprocal 

 demurrage laws which are now in force in several states written de- 

 mand must be made in order to preserve the benefits provided by 

 those laws. 



The reciprocal demurrage acts do not provide an exclusive remedy 

 in cases where shipping facilities are refused; it is generally held by 

 the courts that in such a case the shipper may pursue his common 

 law remedy independently of the act. 



An important limitation upon the right to recover damages lies in 

 the principle that governs awards in all damage cases, namely that 

 the aggrieved person must take all reasonable steps to minimize his 

 damages. So, if a railway company fails to furnish cars and other 

 practicable means of transportation can be found which wiU reduce 

 the amount of resulting damages, such means must be adopted. And 

 when shipping facilities are delayed, the shipper must take all 

 reasonable steps to avoid unnecessary injury to the lumber or other 

 freight pending the delay. 



Mandamus is a proper method of compelling a railway company 

 to furnish facilities which it wrongfully and arbitrarily refuses to 

 afford. 



Phases of Lumber Sales Contracts 

 A contract to sell quantities of lumber to be shipped within a 

 certain period implies that the shipments are to be made at the 

 buyer's option, but requires him to furnish orders for shipment of 

 the fuU amount before expiration of that period. Failure to order 

 out the full amount in that time is waived, however, by the seller 



entering into a new contract modifying the original agreement. 

 Where title to unshipped lumber has not passed to the contract 

 buyer, the seller cannot, on the buyer refusing to order the same out, 

 recover the full contract price. His remedy, if any, is to sue for 

 damages for breach of the contract to buy. (Maine Supreme Judicial 

 Court, Russell vs. Clark, 91 Atlantic Reporter 602.) Accepted orders 

 for goods under a contract, which are void for uncertainty as to the 

 quantity of goods sold, may constitute sales of goods so ordered at 

 the prices named in the contract, but they do not validate the agree- 

 ment as to articles which one of the parties refuses to sell or deliver, 

 or which the other party refuses to accept under the void contract, 

 because neither party is bound to deliver or receive any quantity 

 under the agreement. Neither party to a contract of sale can con- 

 tradict its express terms by showing a trade custom contrary to the 

 provisions of the contract. A contract of sale is unenforceable unless 

 it provides for a sale of a definite quantity of goods. A contract to 

 buy all of a certain kind of articles used in the buyer's business is 

 sufficiently definite, however. The agreement is invalid, though, if it 

 leaves it open to the buyer to refuse to accept any delivery. (Mary- 

 land Court of Appeals, Parks vs. Griffith & Boyd, 91 Atlantic Re- 

 porter 581.) 



Liability for Injury to Employe 

 A lumber company is liable for injury to an employe of one who 

 was engaged by the company to haul lumber from one place to 

 another, the accident having been caused by lurch of a car on which 

 lumber was being carried, due to defective condition of the track. 

 (Nevada Supreme Court, Flodin vs. Verdi Lumber Company, 142 

 Pacific Reporter 531.) 



Duty to Safeguard Machinery 



Under a law requiring employers to safeguard machinery to avoid 

 injury to workmen, where guards can be maintained without impair- 

 ing the efficiency of the machinery, an employe does not assume the 

 risk of working at unguarded machinery, which it is practicable to 

 guard. (Oregon Supreme Court, Filkins vs. Portland Lumber Com- 

 pany, 142 Pacific Reporter 578.) 



Responsibility for Death of Employe 



Where an employe of a lumber company was directed to assist a 

 firm in loading lumber on a vessel under control of the firm, and 

 was precipitated into the water by breaking of a cable on which he was 

 being carried to the vessel, the lumber company and the firm were 

 jointly liable, the appliances being partly owned by each. (California 

 District Court of Appeal, Koskela vs. Albion Lumber Company, 142 

 Pacific Reporter 851.) 



Recovery on Omitted Item of Accoimt 



A wholesale lumber company was not precluded from recovering the 

 amount of an item for lumber sold by the fact that the item was 

 omitted from a bill which was supposed to cover all sums due, and 

 which was paid by the buyer, if the omission was an innocent mistake. 

 (California District Court of Appeal, Union Lumber Company vs. 

 J. W. Schouten Company, 142 Pacific Reporter 910.) 



Injury Caused by Co-Employe's Negligence 



Under the laws of Georgia which exempt employers from liability 

 for injury to an employe caused by negligence or misconduct of a 

 "fellow servant," in certain cases, a lumber manufacturing company 

 is not liable for injury to one of its carpenters while constructing 

 a dry-kUn, caused by negligence of an engineer and fireman in charge 

 of an engine and tram cars operated in the course of the company's 

 business. (Georgia Court of Appeals, Dwan vs. Great Eastern Lumber 

 Company, 82 Southeastern Reporter 666.) 



Lena Timbers vs. C. F. Timbers is the title of a Michigan divorce 

 suit now in court. Lena claims Charles failed to support her and 

 Charles alleges that he woodwork. Any way it appears the timbers 

 were poorly matched. There is no second growth. 



And at that he isn't a lumberman. 



