George F. Sloan & Brother v. Allegheny Co.

Fowler, J., delivered the opinion of the Court. The plaintiff, the Allegheny Company, is a North Carolina corporation engaged in operating a saw-mill there, and the defendants are lumber merchants doing business in the City of Baltimore under the name of George F. Sloan & Brother. In March, 1895, these parties made a written contract by which the former agreed to sell and deliver, and the latter agreed to purchase from the plaintiff, the pine-lumber product of its mill for the period of ten months from March to December 31st, said product not to be less than five million feet nor more than seven million feet during the period mentioned. The plaintiff guaranteed that this lumber should run in quality at least twenty per cent of No. 1, four inches and over wide; thirty per cent of No. 2, and fifty per cent of No. 3 and box, of which at least forty per .cent should be stock, ten and twelve inches wide; any special widths ordered were to be counted as stock.

The lumber was to be sawed from merchantable logs well kiln-dried, and to be sawed and assorted according to the directions of the defendants, but was to be of no other thickness than provided by the contract. For this entire “cut of the mill ” thus guaranteed to run as to quality as above set forth, the defendants .agreed to pay the plaintiff the gross sum of eight dollars and fifty cents per thousand feet net, delivered over the rail of vessels at the mill of the plaintiff. The “cut of the mill,” or “the product of the mill,” means all merchantable lumber — every thing the mill saws, with the exception of culls. A cull is defined by one of the witnesses as a board full of holes or knots and not ⁵⁰³ considered merchantable.

The same witness thus describes the grades mentioned in the contract: A No. I board is clear on one surface and such a board as can be used for a first-class floor and trimmings and the other side must be good and sound ; No. 2 is a board which may contain small sound knots, and such a board as would make a good job; No. 3 is a common board used for an under floor or something of that kind and is the worst board made except a cull; a box board is used to make boxes or for sheathing a house. The products of the plaintiff’s mill during the contract period amounted to 6,475,256 feet, all of which it is conceded was received by the defendants. It is conceded by the plaintiff that the lumber delivered was not in accordance, in quality or quantity, with the requirements of the contract. Thus in grade No. 1 there was an excess ; in No. 2 there was a shortage of 958,393 feet; in No. 3 and' box there was an excess .of nearly 1,000,000 feet over the fifty per cent as provided by the contract.

The contract price for the “ cut of the mill” for the period mentioned amounted 'to $55,039.77. Of this sum the defendants paid to the plaintiffs $47,692.67, retaining in their hands the difference, amounting to $7,347. IO, as compensation for damages they claim to have suffered by reason of the failure of the plaintiff to perform the contract. Whereupon the plaintiff brought this action on the common counts.

The case was tried before the Court below without a jury. The verdict and judgment being against the defendants for $3,483.72, they have appealed. Their contention is that they have a right to recoup the whole balance of the contract price retained by them, having suffered loss to a greater extent by the failure of the plaintiff to perform its contract, while the plaintiff, conceding that there was a breach on its part, as above mentioned, disputes the amount of the damages claimed, and takes issue with the defendant as to the method of ascertaining them. The only question, therefore, presented by this appeal is what is the proper measure of damages.

During the course ⁵⁰⁴ of the trial eight exceptions were taken, seven relating to the admissibility of testimony and the eighth to the ruling upon the prayers; but counsel on both sides conceded in argument that the question above suggested, the measure of damages, or the method of ascertaining them, as applied to the facts of this case, lies at the bottom of each exception. If, therefore, we first