Campbellsville Lumber Co. v. E. R. Spotswood & Son, Pulaski, 1903

CAMPBELLSVILLE LUMBER CO. v. E. R. SPOTSWOOD & SON.

COURT OF APPEALS OF KENTUCKY

74 S.W. 235; 1903 Ky. LEXIS 489; 24 Ky. L. Rptr. 2430

May 12, 1903, Decided

PRIOR HISTORY:  [**1] Appeal from Circuit Court, Pulaski County.

Action by the Campbellsville Lumber Company against E. R. Spotswood & Son. From a judgment in favor of defendants, plaintiff appeals.

DISPOSITION: Affirmed.

COUNSEL: Denton & Robinson, for appellant.

O. H. Waddle, for appellees.

JUDGES: BARKER, J.

OPINION BY: BARKER

OPINION

 [*236]  BARKER, J. This action was instituted by the appellant for the purpose of recovering the sum of $241.66, being the contract price of a car load of lumber which it claims to have sold and delivered to appellees at the agreed price of $18 per thousand feet. The answer of appellees put in issue the sale of the lumber to them. The negotiations concerning the matter in controversy are contained in the following correspondence between the parties:

"Lexington, Ky., Oct 1st, 1901. Campbellsville Lumber Co., Campbellsville, Ky.—Gentlemen: Name us price on 4/4 Common Poplar; also 4/4 clear saps from your stock on the Southern Railway. Make price F. O. B. shipping point and give us the name of the point. Yours very truly, E. R. Spottswood & Son. By — Miller."

To which the following reply was made: "Campbellsville, Ky., 10/2/1901. E. R. Spottswood & Son, Lexington, Ky.—Gentlemen: In reply to yours 10/1, we quote you 4/4 Com. poplar at $18.00  [**2] per M. F. O. B. Somerset and Moreland. Yours respt., The Campbellsville Lumber Co."

Appellees' second letter is as follows: "Lexington, Ky., Oct. 3rd, 1901. Campbellsville Lumber Co., Campbellsville, Ky.—Dear Sirs: If you will notify me when it will be convenient for your man to load two or three cars of 4/4 Com. poplar at Moreland, we will instruct our man there to take it up with him, so there will be no dispute about the lumber after it is loaded. Price to be $18.00 F. O. B. cars at that point, as per your quotation of the 2nd. Let us know when it will be convenient to take it up. Yours very truly, E. R. Spottswood & Son, By — Miller."

To which the following reply was made: "Campbellsville, Ky., 10/4/1901. E. R. Spottswood & Son, Lexington, Ky.—Gentlemen: Yours 10/3 recd. We can load Common at Moreland next week, and will so instruct our man to load as long as your man and our man can agree; we have no trouble elsewhere with our Common. Yours respct., The Campbellsville Lumber Co."

On October 7, 1901, appellees wrote the following letter: "David Peyton, Moreland, Ky.—Dear Sir: I am in receipt of a letter from the Campbellsville Lumber Co., stating they can load some of the Common at  [**3] Moreland this week, so long as our man and their man agree. See their inspector and load up two or three cars, and be certain and tally every board with their man, and do not let him get the best of you. Take nothing but a good grade of lumber. Let me know after seeing him when you can load it [Signed] E. R. Spottswood & Son, By — Miller."

Appellant instructed its agent, J. J. Watson, to have the cars placed upon the switch at Moreland, and to proceed with loading the lumber, as long as he and the agent of appellees, David Peyton, could agree. It appears that, upon the morning when the loading of the lumber was to begin, appellees' agent went to the lumber yard, and there had an interview with J. J. Watson. As to what was said in this interview, the evidence is contradictory. Peyton states that he said to Watson that he would be unable to assist him in the inspection of the lumber on that day, as he had business which would prevent, but that, if the loading was deferred until the next day, he could take part in the inspection to be done. Watson, with several corroborating witnesses, states that Peyton told him to go on with the loading; that he could not be present, but that it would  [**4] be all right, and he would accept the lumber as loaded by Watson. After this conversation Peyton left, and performed no duty in inspecting the lumber. Only one car was loaded by the agent of appellant, and this was billed to appellees at Lexington. After this shipment, appellant wrote the following letter to appellees:

"Campbellsville, Ky., 10/12/1901. E. R. Spottswood & Son, Lexington, Ky.—Gentlemen: Our man at Moreland writes us that he had the cars placed to load the Com. poplar at Moreland, and Mr. Peyton told him to go ahead and load it. He loaded one car and is waiting further orders. Will you accept his inspection on the balance, or send a wire to him on receipt of this whether to load the rest of it? His address is: J. J. Watson, Moreland, Ky. Yours truly, The Campbellsville Lumber Co."

In the meantime, however, the car which had been shipped arrived at Lexington, and, in the opinion of appellees fell far short of coming up to the grade known as "Common"; whereupon they wrote to appellant, declining to receive it at the contract price, but offered to receive and pay for it at its market value; this to be established by disinterested inspection. This proposition having been declined,  [**5] appellees notified appellant that the car load of lumber was subject to its order.

The pleadings present the simple issue as to whether or not the car load of lumber shipped from Moreland to Lexington was purchased of appellant by appellees. For the purposes of this case, it may be admitted that Watson's testimony as to what took place between him and Peyton concerning the loading of the lumber at Moreland is true. The evidence shows that Peyton was only the special agent of appellees to inspect  [*237]  the lumber contracted for in the correspondence herein set out; he had no general authority to represent them in the matter of the inspection of lumber, and he had no power to waive inspecting the lumber in question, or to delegate to Watson the authority given to him in the premises. While appellant may not have known the private instructions given to Peyton in his letter of employment, it did know that he was there to inspect the lumber, and not to waive its inspection for his principals. The very object of his employment, as shown by the correspondence between the parties hereto, was to protect his principals from injury arising from the loading of lumber inferior in grade to that contracted  [**6] for; in other words, his employment, as appellant well knew, was for the purpose of preventing any after-controversy in regard to the lumber purchased, and this could only be done by an inspection on his part, as the lumber was loaded. That appellant realized that Peyton had no authority to waive the inspection of the lumber is shown by its letter of October 12, 1901, in which they recite to appellees Watson's conversation with Peyton, and that he had loaded one car, and ask whether they would accept his (Watson's) inspection of the balance. Had appellant not been aware of Peyton's want of authority to waive the inspection of the lumber, this letter of inquiry would not have been necessary. The contract of purchase was based upon the inspection by Peyton, and, as this did not take place, there was no sale. The shipment of the car to appellees was unauthorized, and they were not bound to receive it.

In the trial below, a jury was waived, and the law and facts submitted to the court. As the conclusions reached by the judge are in harmony with the views of this opinion, the judgment is affirmed.