West Coast Saw Mills, Inc. v. Weis

FOX, J. This is an action to recover the purchase price of 11 carloads of lumber sold and delivered by plaintiff to defendant pursuant to a written contract. Defendant filed a counterclaim and cross-complaint in which he seeks to recover from plaintiff the sum of $77,438.01, which he alleges he overpaid in freight charges on a total of 410 cars of lumber shipped to him under the contract. From a judgment in favor of plaintiff and against defendant on his counterclaim and cross-complaint, defendant appeals.

There is no dispute as to the facts. Plaintiff and defendant entered into a written contract whereby defendant agreed to purchase from plaintiff a total of ten million board feet of lumber. No price was specified in the contract but it was agreed that “the prices for Douglas Fir lumber shall be [360]the prevailing market prices F.O.B. cars Los Angeles, California, at time of shipment, said prevailing prices being in line with selling prices of other producers of well manufactured Douglas Fir lumber f.o.b. ears Los Angeles, it being agreed between buyer and seller that Crow’s Pacific Coast Lumber Digest is a recognized source of information on Douglas Fir lumber prices. Presently the prevailing market prices of surfaced Douglas Fir lumber are recognized as being the present established O.P.A. ceiling prices as published in the Sixth Editon of Crow’s Handy Reference covering Second Revised MPR-26 with all adjustments and revisions, up to and including May 31,' 1946, copy of which both buyer and seller have.”

The lumber was shipped to defendant from South Fork, California, and upon delivery he paid to the carrier the freight charge from South Fork to Los Angeles. Thereafter defendant was billed at an agreed price f.o.b. mill, to which was added the freight rate from Portland, Oregon, to Los Angeles, and the amount of the freight previously paid by defendant, being the rate from South Fork to Los Angeles, was shown as a credit.

Defendant contends the findings of fact are not supported by the admitted facts in the pleadings and that they do not support the conclusions of law nor the judgment. In his brief he states: “The record on this appeal presents but one point for decision, that is, whether plaintiff can exact from defendant an excessive freight, that was never paid to the carrier and which is actually nothing more than a bonus and rebate exacted and collected under the guise that such differential in the freight rate charged and the rate paid to the carrier was, in fact, a part of the purchase price.”