
    *Ragland & Co. v. Butler.
    January Term, 1868,
    Richmond.
    i. Pleading and Practice — Contract—Counts—Case at Bar. — B contracts to sell tlie merchantable pine timber on certain land, and saw it into lumber; pile the said lumber openly with sticks, and deliver it in Richmond. One count says the lumber was piled openly with sticks; another count says the lumber delivered was sawed from merchantable pine timber, and does not say the lumber was merchantable. Held: The contract meant the lumber should be piled, and therefore the first count was good; and that the merchantable timber meant merchantable lumber, and therefore the second count was good.
    3. Same — Same—To Pay by Sixty Day Note — Count— Case at Bar. — in this case the contract was to pay on delivery by a note at sixty days. The count avers the refusal to give the note, and the refusal to pay the money after the sixty days. Heed :. If the non-delivery of the note was the sole gravamen of the action, the averment of non-payment of the money was surplusage, and did not vitiate the count. But held further: That the agreement to give the note to pay at a specified time was, in legal intendment, an obligation to pay at that time if there was a failure to give the note.
    3. Same — Same—To Advancfe Freight — Unnecessary to Aver Payment. — By the contract, R was to advance the freight, which was to be deducted when the note was given. It was not necessary to aver the payment of the freight by B.
    4. Contracts — Obligation to Deliver Implies Obligation to Receive. — One count avers the refusal of R to receive the lumber. The obligation to deliver implies the correlative obligation to receive; and the refusal to receive is therefore a breach of the contract.
    5. Sam® — Mutual Promises — Case at Bar. — The demand of the note is averred to have been made on the day of the delivery, or the offer to deliver the lumber. It is a case of mutual promises, and B was entitled to demand the note when he delivered or offered to deliver the lumber; and the demand was not made too soon.
    *6. Contract — To Sell Merchantable Timber — Rule by Which to Determine Compliance. — A contract to sell the merchantable pine timber upon a certain tract of land, to be sawed into lumber by the vendor according to the directions of the purchaser, and to be delivered at Richmond, is a contract that the lumber shall be merchantable; and' the usage at Richmond as to what constitutes a' compliance with the directions of the purchaser, is to be the rule in determining that question.
    7. Appellate Practice — instructions—Hisleading.—The court having refused to give an instruction to the jury asked for by the defendant, that the plaintiff must prove the delivery or the offer to deliver of merchantable lumber cut from the merchantable timber upon the land, &c., and afterwards having instructed the jury that if they believed that the plaintiff cut from the land, &c., merchantable pine timber, and sawed it into lumber, without saying that the lumber must be merchantable, this in- ' struction, after the refusal of the first, was calculated to mislead the jury; and the judgment will be reversed..
    This was an action of covenant in the Circuit Court of the city of Richmond, brought by James T. Butler against'®. F. Ragland and N. H.' Ragland, partners under the name and style of Ragland & Co., to recover the value of a quantity of lumber contracted to be sold by Butler to Ragland & Co. ; and which they refused to receive, on the ground, as they alleged, that it was not such as the contract provided for. Butler was a citizen of the county of Caroline, and Ragland & Bro. were lumber dealers in the city of Richmond.
    The contract, which bore date the 25th of August, 1865, provided that Butler sold to Ragland & Co. all the merchantable pine timber on a certain tract of land in Caroline county, Va., purchased by said Butler of Bendalls, Peatross and Coleman, to be sawed'into lumber of such lengths, widths and thicknesses, as may be required in writing by the said Ragland & Co., from time to time, as they may want it; provided that they keep an order on hand, so that the mill may be kept constantly running without loss of time; and that the lengths of such timber *are not to exceed thirty-six feet, and the width not to exceed the largest sized 'timber on said land; also, that all of said timber shall be piled openly with sticks for at least thirty days before being shipped. And Ragland & Co. agreed to pay to Butler $22.50 per thousand feet, for the said lumber delivered in the city of Richmond, at the depot of the Richmond, Fredericksburg and Potomac- Railroad Company; said payment to be made by negotiable notes payable at sixty days from the time of completion of delivery of each one hundred thousand feet of lumber at said depot in Richmond. Freight to be advanced as the lumber was received by the said Ragland & Co., and deducted at each settlement.
    The declaration contained five counts, in each of which the contract was set out. A demurrer to the first count was sustained ; and it need not therefore be noticed further. The second count averred, that the plaintiff did, on divers days between the 25th of August in the year 1865 and the 26th of July, 1866, deliver to the defendants in the city of Richmond, at the depot of the Richmond, &c., Railroad Company, merchantable pine lumber, sawed ■ of the lengths, widths and thicknesses required by the orders in writing of the defendants; which lumber amounted to more than one hundred thousand feet, viz., on, &c., stating the different days when the lumber was delivered, extending from April 25th to July 23d, 1866, and the quantity delivered on each day. The count then goes on to aver a compliance by the plaintiff with each provision of the contract on his .part, notice of the delivery of each parcel of lumber to the defendants on the day of delivery; and the demand after the whole hundred thousand feet of lumber had been delivered,' to wit, on the 23d of July, 1866, upon the defendants for their negotiable note, payable at sixty days, for the price of one hundred thousand feet of lumber at $22.50 per thousand feet. And the defendants *had then and there refused to make 'their said negotiable note payable at sixty days from the said' 23d of July, 1866, &c.
    . The third count sets out the orders of the defendants for the lumber, and the delivery in pursuance of said orders, the last being on the 23d of July, 1866, at the railroad depot, of lumber sawed from the merchantable pine timber on the tract of land referred to in the contract, and part of the merchantable pine timber sold to the defendants ; which said lumber, before being shipped to Richmond, had been piled openly with sticks for thirty da3,'s, and amounted to more than one hundred thousand feet. There was then an averment of the demand, to wit, on the 23d of July, 1866, of the negotiable note, and the refusal to give it; and that, although sixty days had elapsed since the completion of the delivery of the lumber, and the price thereof, amounting to $2,250 is due and payable, the defendants, &c., had not paid, &c.
    The fourth couni; differs from the third only in averring that, on the 23d of July, 1866, in the city of Richmond, he demanded of the defendants the price of said lumber at the rate of $22.50 per thousand feet, viz., $2,250, and required that the said price should be paid by a negotiable note, payable at sixty days as aforesaid. But ’that the defendants had refused to make such note; and that though the price of the said one hundred thousand feet of lumber so delivered had long. since become due and payable, the defendants, though often requested, had refused to pay the sanie.
    The fifth count sets out the orders of the defendants for lumber as of the dates of the ■26th of August, 1865, the 15th of February and the 16th of April, 1866, stating the different kinds and quantities of each, and then averred, that the plaintiff was ready in fulfilment of his part of said article of agreement to deliver to the defendants lumber *of the lengths, width and thicknesses mentioned in said orders of the defendants, and that he had ready for delivery in the city of Richmond, at the depot of the Richmond, Fred-ericksburg and Potomac Railroad Company, lumber of the lengths, &c., required by the said orders in writing of the defendants,* amounting to a large number of feet, to wit, to one hundred and seven thousand one hundred and fifty-six feet, stating the times from the 25th day of April to the 23d of July, 1866, and the kinds and quantity of each at each date. That the lumber was sawed from the merchantable pine timber on the tract of land in Caroline county; that it had been piled before shipment for thirty days openly with sticks; that the defendants had notice on the several days the lumber was at the depot in Richmond that it was ready for delivery; but that they had refused to receive the said several lots of lumber.
    At the November term, 1866, of the court, the record says, “the defendants demurred generally to the plaintiff’s declaration, and the plaintiff joined in the demurrers.” The cause was continued until the May term, 1867, when it was heard upon the demurrer, and the entry is: “The defendants’ demurrer to the plaintiff’s declaration being argued, it seemed to the court that the second, third, fourth and fifth counts of the said declaration were sufficient in law for the plaintiff to have and maintain his action against the defendants ; whereupon the court overruled the said demurrer to the said counts ; and that the first count of said declaration, and the matters therein contained, were insufficient in law for the plaintiff to have and maintain his action on that count. It was therefore considered by the court that the demurrer to the first count be sustained; and no ground being assigned for the general demurrer to the declaration, the court overruled said demurrer.” Issues were then made up on *the pleas of “covenants performed” and “covenants not broken.” On the trial, the plaintiff introduced in evidence the contract declared upon, the orders of the defendants for the lumber, the certificates of the measurer and inspector of lumber for the city of Richmond that he had passed the different parcels of lumber, specifying the’kind and quantity, as good merchantable lumber, and also written notices to the defendants that it was at the depot, and calling upon them to take possession of it; and he introduced evidence to prove the delivery of these notices, and also that the lumber had been piled as required by the contract, and was merchantable. The defendants introduced a number of witnesses, the most of whom were builders in the city of Richmond, and had examined the lumber at the request of the defendants, to prove that it was not merchantable. It appeared that, after the refusal of the defendants to receive the lumber, it had been sold at auction by the plaintiff, after notice of sale to the defendants.
    After the evidence had been introduced, the defendants moved the court for an instruction embracing the first three propositions asked for in the second instruction ; and that upon the plaintiff’s failure to prove any one of said propositions he could not recover in this action.
    This instruction the court refused to give; and thereupon the defendants asked the court to instruct the jury as follows:
    2d. The court instructs the jury that, to recover in this action, the plaintiff must prove that he delivered or tendered between the 25th of April, 1866, and the 23d of July, 1866, at the depot of the Richmond, Freder-icksburg and Potomac Railroad Company, one hundred thousand feet of merchantable lumber, cut from the merchantable timber upon a tract of land bought by him from *Bendalls, Peatross and Coleman, in the county of Caroline; and upon a failure to prove which he cannot recover in this action.
    3d. The court instructs the jury that, to recover in this action, the plaintiff must prove that said lumber was sawed in such lengths, wfidths and thicknesses as was required by the defendants by orders dated August 26th, 1865, February 15th, 1866, and April 16th, 1866, provided that said orders did not require lengths exceeding thirty-six feet, and widths not exceeding the largest size timber on said land; and upon a failure to prove which he cannot recover in this action.
    4th. The court instructs the jury that, to recover in this action, the plaintiff must prove that the said lumber, before it was shipped from Caroline, had been piled openly with sticks for at least thirty days; and'upon failure to prove which he cannot recover in this action.
    5th. For the plaintiff to recover in this action, the jury must be satisfied from the evidence that one hundred thousand feet of lumber was delivered or tendered by the plaintiff between the 25th day of April, 1866, and the 23d day of. July, 1866,.at the depot of the Richmond, Fredericksburg' and Potomac Railroad Company, in the city of Richmond, of the kind called for in the contract sued on, of the sizes specified in the orders of the 26th of August, 1865, 15th of February, 1866, and the 16th of April, 1866; and if they shall not be satisfied from the evidence that one hundred thousand feet of such lumber was so delivered or tendered, they must find for the defendants.
    The court refused to give these instructions. The plaintiff then applied for an instruction, which, the court refused to give, and gave the following:
    If the jury shall believe from the evidence that, on or before the 23d day of July, 1866, the plaintiff cut from *the land mentioned in the contract between himself, and the defendants- given in evidence in this cause, merchantable pine timber, and sawed it into lumber of the lengths, widths and thicknesses required in the-written orders of the. defendants, from time to time, and piled the said lumber openly with sticks at least thirty days before being shipped, unless shipped sooner by order of the defendants, and within a reasonable time after said orders were received and on or before the 23d day of July, 1866, .the said plaintiff delivered one hundred thousand feet of said lumber at the depot of the Richmond, .Fredericksburg and Potomac Railroad Company, in this city, of which. delivery the defendants had, due notice, then the plaintiff is entitled to recover the yalue iof the one hundred feet of lumber.-so delivered, estimated at the rate of. $22.50 for each one thousand feet;, unless .the jury shall further.- believe, that the defendants, made payment- therefor by negotiable note at sixty days from the, time of completion, of- the delivery -of. the lumber as aforesaid.. But if the jury shall believe that .the defendants refused- to receive the lumber’delivered as aforesaid, and that the plaintiff sold the-same after having duly notified the defendants of such sale, then the amount so ascertained is to be credited by tire net proceeds of such sale and the freight advanced by said defend-: ants, if any. In ascertaining whether said lumber was sawed as directed by said-order, the jury may consider what is a compliance with such orders according to the custom of the trade in lumber in this city..
    To the- opinion of the court refusing to give the instructions asked for by the defendants, and giving the foregoing instruction, the defendants excepted. -There was a verdict and judgment for the plaintiff for $1,162.04, with interest from the 23d of September, 1866, till paid. And-the defendants thereupon applied to this court for a writ of error, which-was allowed.
    331 ^Williams and Crump, for the appellants.
    Steger & Sands and Lyons, for the ap-pellee.' ' ' '
   RIV-RS, J.

- There seems to be some -uncertainty and imperfection in the record as to the state of pleadings in this case. The first entry of 21st November, 1866, is, “that the defendants demurred generally to the plaintiff’s declaration; and the plaintiff joined in said demurrers.” If this stood alone, there would appear to have been only a general demurrer -to the whole declaration; and that the plural “demurrers” was used by mistake for the singular. But when we look further into the proceedings, we find that there has been some omission or inaccuracy which devolves upon us the duty of giving a. consistent interpretation to the whole. I think the materials for doing so will be found in the entry of May 15th, 1867, by which the pleadings were adjusted by the court. The statement is, “that-the defendants’ demurrer to the plaintiff’s declaration being argued, it seemed to the court that the second, third, fourth and fifth counts of the said declaration were sufficient in law for the plaintiff to have and maintain his action against the de--fendants; whereupon the court overruled the said demurrer as to said, counts; and that the first count of said declaration and the matters therein contained were insufficient in law for the plaintiff to have and maintain his action on that count. It was therefore considered by the court that the demurrer to said first count be sustained; .and no ground being assigned for the general demurrer to the declaration, the court overruled said demurrer.” This action of the court can only consist with the hypothesis of a demurrer to the whole declaration, and demurrers to the several counts thereof. The uncertainty,, therefore, of the first entry is corrected, by this latter one; and when. both, are taken and construed together, we are warranted in viewing the case as if in ^'addition to the demurrer to the whole declaration, the counts -were severally demurred to, so as to give effect and meaning to the plural designation employed in said first entry, which would have been inapplicable if there had been a demurrer to the whole declaration alone. .Hence, I infer from the whole record that the appellants are entitled to the benefit, if any, of their several objections to the counts of the declaration, as if the record had shown.demurrers to them in terms.

The first two grounds of demurrer may be considered.together — the first alleging that the performance should have been alleged in the terms of the contract as set .forth, namely, that- the timber and not lumber was piled openly with sticks, &c.; and the second, that in the third, fourth and fifth counts the delivery- was averred in the language of the contract as of “lumber sawed from merchantable pine timber,” without the epithet used in the second count of “merchantable.’’ It is obvious that these exceptions militate against each other. While the first complains of any averment save in the literal terms of the contract, the second requires, a departure from the words, and ,a construction of the contract in the meaning' and interest to the defendants. This seems to me to involve a total misconception of the objects of pleading and the dirty of the pleader. In the averment of performance or breach the plaintiff has a right to conform to the legal effect and substance of the instrument he declares upon; and necessarily takes the hazard of any departure therefrom. The demurrer raises the question and devolves upon the court the construction of the instrument of which profert is made. There can, of course, be no error in counting on the delivery of the lumber in the language of the contract; can there be any in substituting “lumber” for “timber” in reference to the obligation to pile? If the latter term is assumed to mean the unsawed log or beam, it would ^stultify the parties to the contract, as there is neither sense nor object in piling such; and the first rule of legal construction is reasonableness ; but if the context plainly demonstrate the terms to be interchangeable in that application, there is still less semblance of propriety in the objection. These mere technicalities, therefore, were properly overruled.

A third ground of demurrer is, that the breach should have been confined to the non-delivery of the note, and should not have embraced along with that the nonpayment of the money, for which the note should have been given. The whole force of this objection is avoided by two considerations : First — Upon the hypothesis of the defendants, that the non-delivery of the note was the sole gravamen of the action, the averment of non-payment was surplus-age ; and, secondly, that an agreement to give a note to pay at a stipulated time created, by force of a necessary legal intendment, an obligation to paj^ at that time, if there were a failure to give the note. I do not, therefore, discern any defects in the counts in this particular.

The fourth objection rests on the pretension, that the deduction of costs- of transportation was a condition precedent to the action; but this is not so; it is a matter of plea or defence, or abatement of the plaintiff’s demand. The right of action was complete on delivery; and it was not incumbent on him to aver a set-off, to which the defendants in a certain event might be entitled; nor in this case could the payment of freight have been alleged, because the refusal to receive carried with it a denial of the freight.

Fifthly, it is claimed that the fifth count is faulty, in averring a refusal to receive as a breach of this contract. An obligation to deliver, implies the correlative duty to receive; and the pleader was well justified to vary his allegations ^according to legal intendments, and to rely on this version of the contract. The sixth and last objection to the declaration is, that the demand of the negotiable note is laid on, the same day that the delivery was averred, namely, on the 23d July; whereas it is contended that the defendants; had the whole of that day for the making of their note. The doctrine, thus invoked, does not apply to this case. It is one of mutual contracts, contemporaneous in performance, and falling under the fifth rule laid'down by Mr, Sergeant Williams, in his note to Pordage v. Cole, 1 Wms. Saund. R. 310. Such is the case of all sales. Delivery is predicated of payment; and payment, of delivery, leaving it uncertain which party is to do the first act. Here, upon the delivery or offer to deliver, the plaintiff was entitled at the same moment to the note of the defendants. It is not, therefore, a question at all analogous to the one made at the bar, whether, in the computation of time, a day was to be reckoned inclusively or exclusively; the making of the note was contemporaneous in the understanding of the parties with the act of delivery; and both were properly laid on the same day. The delivery might have been refused without the note; as well as the note refused without the delivery.

I have thus reviewed all the grounds of demurrer, and given my reasons for approving the action of the court below in overruling them. This brings us to the substance and merits of this controversy. The questions arise upon the instructions refused, and the instruction given by the court. A comparison of the former with the latter, shows that there are but two en-quiries submitted to us: first, as to the interpretation of the contract respecting the lumber to be delivered; and secondly, as to the proof of usage, or its admissibility in governing its fulfilment.

I. In order to arrive at a just and reasonable interpretation *of this contract, we must look at the situation and conduct of the parties, and the subject-matter of their contract. The plaintiff ivas the owner of certain lands, and proposed to sell all of the ,merchantable, pine timber upon them; the defendants were lumber-dealers in the city of Richmond, and agreed to buy this timber, to be sawed into lumber of dimensions to be ordered, under certain restrictions as to length and width, and as to time and mode of seasoning. There seems to have been no preliminary survej to inspect and ascertain the character of the growing timber, as would have been proper and necessary, if it had been the subject of the sale. But such was not the bargain; lumber was the object of the defendants, and the subject-matter of the contract. With the sale of the timber, the plaintiff coupled the further undertaking to have it sawed according to orders; and Twhen dried in a particular mode, to deliver in the city of Richmond. What was the design of stipulating that the timber should be merchantable, if the same quality was not to attach to Ihe lumber into which it was to be converted? What is the meaning of merchantable timber, if it be not timber that will make merchantable lumber? The application of this epithet to the timber, doubtless superseded with the contra cting parties the propriety of its repetition in regard to the lumber, because it is not reasonable to suppose that the parties could have contemplated anything but merchantable lumber as the product of merchantable timber; or could have imagined any other test of merchantable timber except its Capacity to make merchantable lumber.

The ambiguity of this contract in this particular, is also removed by the dealings of the parties under it. The plaintiff caused the lumber, as delivered, to be measured, and certified by the measure as merchantable. These certificates of measurement and quality were transmitted by the plaintiff, and recognized by him as due to the defendants. *They may, therefore, be considered as his practical interpretation of his obligation for the lumber ; and authoritatively explain whatever of ambiguity confuses the terms of the bargain.

It might seem that the language of the court’s instruction should not have misled, the jury. They would have been well warranted in construing the instruction as requiring the lumber to be merchantable, inasmuch as it was required to be sawed from merchantable timber; but inasmuch as the court had refused the defendants’ instruction on this particular point, there was ground of misconception, and the language of the instruction was not precise and definite ' enough. I think,' therefore, this instruction was, under the circumstances, too restricted, and should in terms have required the lumber to be also merchantable.

II. In regard to the second point of our enquiry — the control of usage over this contract — it is not clear what foundation was laid for the introduction of such proof, or to what precise matter it was addressed.

The term “merchantable” is not one that the law can define; and the sense in which it was used must be left to the determination of the jury. For that purpose,' they are to consider the circumstances under which the contract was entered into, the situations and business of the parties, and the usage of the lumber tirade, that prevailed in the city of Richmond at the date of the contract, as the means of ascertaining the intentions of the parties.

In the fulfilment of orders like those contemplated by the parties in this case, it must often happen that the dimensions of the lumber furnished, in length, width and thickness, do not precisely correspond with those specified in the orders.

As a general principle, usage cannot be allowed to control the execution of the orders, or justify a departure *from them; but an exception may arise upon proofs- — namely, if it should appear that there was an established usage, showing what should be deemed a substantial and sufficient compliance with such orders, it might be proved to ascertain the sense in which the orders were understood by the parties — whether they were to be presumed as contracting in reference to such usage, and whether an exact, mathematical compliance was intended; or if not, what approximation to it would satisfy the contract. For this purpose, too, the usage to be referred to, is that which prevailed in Richmond at the date of the contract, for that alone must be supposed to have been in the contemplation of the parties.

I am, therefore, of opinion, the judgment of the court below should be reversed, and the case sent back for another trial, in conformity with the principles indicated.

The other judges concurred in the opinion of Rives, J.

Judgment reversed.  