SPELLMAN LUMBER CO. et al.
HALL LUMBER CO. et al
Rehearing Denied March 26, 1952.
Judgment reversed with directions.
Byrne & Byrne, of Prescott, for appellants.
Mangum & Flick, of Flagstaff, for appellees.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.
Udall, Chief Justice.
[73 Ariz. 323] Spellman Lumber Company, a copartnership consisting of S. Whitney Spellman and Estelle L. Spellman, as plaintiffs, instituted this suit against defendants Hall Lumber Company, a copartnership consisting of R. L. Hall and J. D. Hall, for the alleged breach of a contract. The case was tried to the court sitting without a jury which denied plaintiffs any relief and they have appealed from a denial of their
motion for new trial and the judgment entered in favor of defendants.
Plaintiffs are engaged in the wholesale lumber business with its principal place of business in Birmingham, Alabama, and defendants are engaged in the re-manufacture of small mill lumber with their mill and office located in Flagstaff, Arizona. During the first week of April 1948, Henry A. McNutt, a representative of the plaintiffs, visited the defendants' office looking to the purchase of lumber. After some discussion in the office, McNutt and defendant R. L. Hall went out and examined the lumber on hand with particular emphasis as to its moisture content. It was ascertained from the inspection of ten to fifteen pieces that the moisture content ranged from bone dry (9%) to very green lumber (21%).
McNutt then communicated this information to plaintiffs who telephoned Hall from Alabama telling him they were definitely interested and thought they would be able to wire a purchase order number. Plaintiff then notified defendants by wire to enter orders for two cars of number 2 shop and better, ponderosa pine, air dried, and formal purchase orders were being sent by air mail. The purchase orders directed the defendants to ship the first car, unsurfaced, to the Standard Lumber Co., [73 Ariz. 324] St. Louis, Missouri, and the second car was to be surfaced on two sides and consigned to the plaintiffs in Birmingham, Alabama. After an exchange of telegrams concerning the terms of payment the defendants on April 10, 1948, formally accepted the written purchase order and specified that the lumber to be shipped was air dried.
Plaintiffs sold the second car during transit and upon its arrival reconsigned it to the purchaser, General Supply Co. of Birmingham. It was rejected by the customer because it was green and stained which made it unfit for their use. Plaintiffs notified Western Pine Association requesting a reinspection of the lumber and Lee Moffett, the association's representative inspected it and certified that it was green and stained. Plaintiffs disposed of it to another customer at a loss of $ 825.73, which constitutes the damages claimed in this action. No complaint was made as to the first car shipped to St. Louis; it is only the loss sustained by the plaintiffs on the second car that is involved in this suit.
Plaintiffs' cause of action against defendants -- as set forth in the original complaint -- was for breach of an express contract, it being alleged that defendants had agreed to sell and deliver to plaintiffs a carload of number 2 shop and better ponderosa pine, air dried lumber, at $ 126 M.B.F. and that defendants had breached their contract by selling and delivering green lumber. One defense was that plaintiffs had failed to notify defendants within ten days of their dissatisfaction with the shipment as required by the rules (Rule 88) and regulations of the Western Pine Association -- of which both parties were members -- concerning ...