Hannagan v. Feather River Pine Mills, Inc.

PEEK, J.

This is an appeal by defendant from an adverse judgment for the balance due and unpaid under a contract for the sale and purchase of lumber.

[759]

On April 16, 1948, the parties entered into a written agreement wherein the plaintiffs agreed to sell and the defendant agreed to bny, at the prices specified therein, certain lumber produed by plaintiffs. Among other things the contract provided :

“Either party may ask for an adjustment in this price following a general price change of 10% or more as indicated by the Western Pine Association’s price index.

“Unless a satisfactory adjustment can be agreed to this contract may be cancelled by either party upon 90 days notice in writing. ’ ’

Thereafter in September of that year defendant, in accordance with the permissive provisions of the contract, requested an adjustment in the price of the lumber as of September 26th, to which request plaintiffs agreed. The adjustment was limited solely to the question of price. Thereafter the parties continued operations under the contract as adjusted. However, the following month, although it had not been agreed upon, the defendant arbitrarily made a further reduction in the price of the lumber to be delivered to it. Plaintiffs thereupon informed defendant they could not accept the arbitrary price set by defendant and would hold defendant to the terms of the contract. Thereafter and until the conclusion of the season plaintiffs continued to deliver lumber and the same was accepted and paid for by defendant at the arbitrary price set by it. The money so paid by defendant was accepted by plaintiffs but they continued to bill defendant at the adjusted rate.

After - considerable negotiation and more than two years thereafter, the present action was filed on March 12, 1951. The complaint contained three counts. The first was on the written contract and the second and third were common counts, all of which were generally denied by defendant. The court granted a nonsuit as to the common counts and granted plaintiffs leave to amend the first count to conform to proof so as to incorporate therein the price modification orally agreed upon in September, 1948. Judgment was thereafter entered for plaintiffs as prayed.