Guernsey v. West Coast Lumber Co.

Hayne, C. This was an action for damages for the breach of a contract to buy lumber. The contract provided that the defendant should buy all the lumber “of good, merchantable quality” which should be manufactured by the plaintiff during the year 1888 at his mill in San Bernardino County, and contained the following clause:—

“ Said lqmber shall be of such sizes as are usually required for the market, and shall be designated by Guernsey, [250]regard being had to a due variety of sizes, so as to meet the general requirements of the market, except that the company may give orders for any required sizes usually cut.’’

Under this contract, the plaintiff delivered lumber to the defendant until the middle of August, and, with certain unimportant exceptions, the defendant received and paid for the lumber so delivered. About that time the employees of the defendant informed its general manager that some of the lumber which was being delivered was not thick enough, and he instructed them “to have it remedied.” No order for any particular size was given to the plaintiff; but he was informed that the lumber he was sending was too thin. He promised to attend to the matter, and his men continued to deliver lumber to the defendant, and the latter to receive and pay for it, until September 20th, when the plaintiff was notified that no more lumber would be received. The plaintiff thereupon sold the remaining lumber to other parties, and brought this action to recover the difference in price. The trial court found that the defendant's refusal to receive further lumber was without excuse, and gave judgment for the plaintiff, and the defendant appeals.

We think that since the defendant accepted and paid for the lumber delivered up to September 20th, without reserving the right to object to it subsequently, and does not offer to return it, but still retains it, any ground of objection to it which may have existed could not be a reason for refusing to accept subsequent lumber which was in accordance with the contract. The ultimate question, upon which the case must turn, therefore, is, whether the subsequent lumber was in accordance with the contract.

As we have seen, the contract provided that the lumber was to be of good, merchantable quality, and of such sizes as were usually required for the market, which sizes were to be designated by the plaintiff, subject to the right of the defendant to give orders for any sizes usually [251]