1902, in calling for payment for lumber delivered and more prompt taking of lumber, the Dunton Lumber Company said to Kelley & Co.: "We should like to load these boards up as soon as possible because we are crowded for yard room. If there is any way you could move them a little faster we should like to have you do so." September 12, 1902, Kelley & Co. replied: "We have your favor of the 9th inst., and have sent same to Mr. Vanhorn who will attend to the matter," and September 15th Vanhorn wrote: "About taking your lumber. We are ready to move as quickly as it is dry, but we do not propose to take any more of it until it is dry and in good shipping condition. I think in about a month it will be all right, and we expect then to get to work at it again." October 1, 1902, Vanhorn wrote to the Dunton Company, inclosing check: "Kelley & Co. wrote me that they want all these matters sent to me as they don't care to bother with them." October 15th the Dunton Company again wrote Vanhorn urging the taking of the lumber, etc., and in reply Vanhorn said: "We are now loading a vessel. * * * We expect to come to Rumford Falls. We may be able to get to work," etc. * Again, October 21st, he wrote, and in speaking of the lumber and contract four times stated what "we" are to do or have done or will do. December 19, 1902, the Dunton Lumber Company wrote Vanhorn: "We hereby forbid your sorting any more pine boards in our yard, as the contract with W. E. Kelley & Co. has not been fulfilled and we have notified them today that the contract is cancelled." On the same day, December 19, 1902, the Dunton Lumber Company wrote W. E. Kelley & Co.: "The contract which we had with you for our pine boards is not being fulfilled by Mr. Vanhorn, and we hereby cancel said contract, and no more boards will be shipped on it." December 20th Vanhorn wrote the lumber company: "There is still due on your contract of Dec. 11, 1900, little over 500 M ft. pine lumber, which we have not been able to get because the stock was not dry. ** I reported the facts to W. E. Kelley & Co. and I can't tell what they will do about the matter. I will do this. If you will stop violating the contract and let us have what is due us at the earliest possible moment and according to the contract ** there will be no trouble, but if you persist in doing as you have been I am in position to compel Kelley & Co. to prosecute you to the limit. What I want is the lumber and I will have it. About * the manner of measurement we will hereafter adhere strictly to the contract. Will see you in a few weeks and talk over the business, but in the meanwhile leave the lumber alone and write me what you propose to do." December 22, 1902, W. E. Kelley & Co. wrote the Dunton Lumber Company and stated that they had the letter of the 19th instant advising them that the contract for boards was not being fulfilled by Mr. Vanhorn, and that for such reason the Dunton Company had canceled it. Kelley & Co. say: "We wish to advise you that we will not consent to any such thing. Ever since the contract was made with you you have failed to carry out your part of it, and as a consequence we have suffered great damages which up to the present time we have waived, but we advise you now that we will expect you to fulfill the contract to the letter, and we consider it pretty small business in you now to find fault with Mr. Vanhorn for not moving the lumber quite as fast as it should have been moved when you are more than a year behind in the furnishing of the stock. We have referred this matter to Mr. Vanhorn, but as far as we are concerned we will not consent to your action, unless it meets with Mr. Vanhorn's approval." December 24, 1902, the Dunton Lumber Company wrote Vanhorn: "I was not aware that you owned any lumber in our mill yard, or had any contract with us, and I would like to have you explain by what authority you forbid us shipping lumber which we own. So far as the contract with Kelley is concerned, their side of it has been violated, and as I wrote you a few days ago, I notified them that the contract was cancelled." December 26, 1902, the Dunton Company wrote Kelley & Co., in which that company speaks of Vanhorn as an agent merely, and of his alleged misconduct, and calling the attention of Kelley & Co. to their obligations under the contract, and demanding payment for arrearages due. The Dunton Lumber Company then says: "As far as the damage to you is concerned, by not shipping lumber in 1901, we think you have quite a difficult task to show a jury where the damage came in, when the lumber is worth this year about $3.00 per thousand more than it was last. We shall deal in this matter directly with you, as we do not recognize Mr. Vanhorn's right to any of our lumber, as we have no trade with him whatever, and notified him so in the first place, and none of the lumber which we have shipped, has ever been charged to him and all invoices are made to W. E. Kelley & Co." December 30, 1902, Kelley & Co. replied to this letter and said: “We have your favor of the 26th instant in reference to the balance of lumber due on the contract made some time ago with our representatives. It is a matter of great regret to us that any disagreement or unpleasantness should have arisen out of this deal. We have asked Mr. Vanhorn to see you as soon as he can and come to some understanding. * * * You will agree with us that we have never attempted to force a claim for damages on account of your failure to deliver the lumber in the time contracted, although it must be apparent to you that we were much inconvenienced because you could not furnish the lumber to us at the time you expected to be able to do so when you entered into the contract. We gather from Mr. Vanhorn's correspondence that it has been somewhat difficult to ascertain from your men in charge a time when any part of the stock would be fit for shipment. Mr. Vanhorn assures us that he has gone several times to ship out the lumber, expecting to find it dry enough to ship, although we believe that some shipments have been made, and an excess rate of freight paid, because the lumber was not dry." Then comes this very significant language: "The failure on your part to give us the lumber in time may have made it impossible, or inconvenient at least, for us to strictly live up to the letter of the contract. We have always understood you were very fair people, and inclined to give and take. There has never been any wish on the part of this office that any advantage should be taken of you. We simply want what you contracted to give us, and you ought to have the conditions complied with as regards our part of the agreement. We believe that if a sense of fairness dwells in the minds of Mr. Vanhorn and yourself, this can be adjusted without any litigation. It seems foolish that fairminded people should talk of litigation. We regret that the distance is so great from Chicago that it makes it impossible for Mr. Kelley or the writer to have a personal interview with you." 151 F.--33 January 3, 1903, the Dunton Lumber Company answered, and said, among other things: "We have shipped lumber out whenever your representatives have asked us to, and shipped until they told us to stop. We have never had any trouble or friction with any representatives you have sent here, until Mr. Vanhorn took charge of the matter. *** As we stated to you in our last letter, there is piled in our yard at the present time, which Mr. Vanhorn sorted out about a month ago, some three hundred thousand or more of the pine boards, which are thoroughly well air dried, and which I think Mr. Vanhorn said, were plenty dry enough to ship. * Now, if you are in such a hurry for these boards, or if he is, why does he not ship them out? ** * Now, if you are willing to send any fair minded man here to represent you, to take this lumber out, we shall only be too glad to do all we can to assist him, but Mr. Vanhorn will not sort out any more lumber in our yard, that we want distinctly understood, because, if he attempts to do so, we shall stop him. Now, if you are in communication with Mr. Vanhorn, we think it would be better for you, for him, and for us, if you sent him to some other place, and sent some other representative to finish up here, because after the letter we received from Mr. Vanhorn we cannot treat him with the cordiality and respect which we are always desirous of extending to men with whom we do business." January 7, 1903, Kelley & Co. wrote the Dunton Lumber Company in reply: "We regret that there should have been anything in the shipment of this lumber to cause you annoyance or inconvenience. We have today written Mr. Vanhorn to endeavor, in closing up this matter with you, to be as considerate as possible, and to try to finish the contract in a manner perfectly agreeable to all concerned." January 17th Vanhorn wrote the Dunton Lumber Company that he would be in Rumford Falls on the 20th, and would like to see Mr. Dunton and talk matters over. February 11, 1903, the Dunton Lumber Company wrote W. E. Kelley & Co. that Vanhorn had been there, and stated that he had come to ship out more boards. The language is: "Your Mr. Vanhorn came here today," etc. Later in the letter the Dunton Company says: ** "When this bill is settled, if you have a man you can send here to represent you who can treat people with common courtesy and fairness, we shall be ready to meet you half way and see if we can do business. Now, what we desire to know is, whether or not Mr. Vanhorn was acting under orders from W. E. Kelley & Co., when he was here today? * We wish to remind you again, that we do not, and never have, recognized Mr. Vanhorn as anything except your representative here. We have never sold Mr. Vanhorn any lumber, we have never charged any lumber to him, have never looked to him for the pay for any lumber, and we would not, because we do not consider him responsible. We look to W. E. Kelley & Co., for the payment of this bill, and we want to know what you are going to do about it, and then we shall know what we are going to do." February 14, 1903, Kelley & Co. answered, saying, among other things: "Our Mr. Daugharty is in the East at the present time, and he is the only one of our company thoroughly conversant with the Vanhorn matter, as he made the arrangement with Mr. Vanhorn for the handling of the stock. You may rest assured that we will do nothing but what is right towards you, and will have Mr. Daugharty take the matter up with you immediately on his return, which will be the latter part of next week.” Again, February 24th, Kelley & Co. wrote the Dunton Lumber Company among other things: "We regret, as we have expressed before, that there should be any unpleasantness between yourselves and our representative, Mr. Vanhorn. Mr. Vanhorn is the only representative we have in the East, and with him we shall be obliged to ask you to deal. Mr. Vanhorn has informed us that he has been unable to secure from you any satisfactory promise, for the past few months, as to when you would definitely agree to give him the stock due us under our contract." The letter then refers to the transactions between them, and compliments the Dunton Lumber Company on its high credit and integrity, and then says: "And again ask that you now state when you will furnish the balance of the stock to our representative. When you do we will see that the balance of the money due you is paid." March 3, 1903, the Dunton Lumber Company replied, reiterating its position that it would have nothing further to do with Vanhorn. March 7, 1903, W. E. Kelley & Co. wrote the Dunton Lumber Company, referring to the letters above referred to of August 7 and August 9, 1902, and suggesting that Mr. Vanhorn be seen and some arrangement made, and the Kelley Company says: "We instructed Mr. Vanhorn some time ago to not pay you any money until he had received some assurances from you that the balance of the lumber duc us under the contract would be forthcoming at a stated time that could be depended on." March 21, Kelley & Co. again wrote the Dunton Lumber Company, in which they said, among other things: "We wonder that any company should take the stand that you do—of trying to evade your contract. We have a contract with you under date of the 11th day of December, 1900, whereby you agreed to furnish us a specific amount of lumber during the year 1901. When we made this contract with you we had a planing mill and office at Portland, Maine, and it was through this office that we expected to market the lumber." The letter then refers to a failure to perform, and to the fact that the Kelley Company closed its Portland office and moved its machinery away, and then says: "And in your letter to us of August 7th, 1902, you stated you were perfectly willing that Mr. Vanhorn should ship out the lumber as our agent. This you now decline to do. We hold that you have no right to nominate the party with whom you will or will not do business as our representative, and we now say to you that we will hold you for any damages that may arise, or have arisen from the fact of your not having furnished this lumber to us in the time in which you agreed to furnish it. On Thursday of this week I saw Mr. Vanhorn at Albany, N. Y., and he showed me correspondence, and told me of interviews he had with you, and we believe he has conducted himself as a thorough business gentleman. More than this-he has been very considerate, in view of the great inconvenience and expense which we have been put to because of your non-fulfillment of contract. The writer suggested to Mr. Vanhorn that he see you and endeavor to come to a satisfactory understanding. We are prepared to pay you the money we hold in our hands when we have some positive assurance from you that you will fill the contract within a certain time. We are not satisfied with the indefinite manner in which you have furnished us lumber. You have not, as you say in yours of the 16th instant, always furnished us lumber when we requested it. You refused to allow Mr. Vanhorn to ship out some lumber very recently, when he had orders in his hands, and he was therefore obliged to make other arrangements which were expensive, and you may yet have to pay for same. We state * * again: All we want is that you shall fill your contract with us, and we will do the same with you, and if you refuse to do it you may as well understand first as last, that we will endeavor to make you pay damages, as well as fill the contract." (4) After the Dunton Lumber Company wrote that they canceled the contract, and after Kelley & Co. in reply stated that they would not assent to its cancellation, deliveries of lumber were made and accepted, and all the parties, including Vanhorn, treated the contract as in force, and in fact ignored the declaration that it was canceled. As a legal proposition, therefore, the contract was not canceled. (5) The evidence shows that up to the 10th of January, 1903, when the last delivery of lumber under the contract was made, or, more properly speaking, up to the latter part of December, 1902, the parties did not require strict performance. At times the Dunton Lumber Company failed to have lumber on hand sufficiently dry when it was called for, but this was overlooked, and no advantage was taken of the fact. On the other hand, invoices were furnished which showed the amounts due for various shipments of lumber, and W. E. Kelley & Co. did not comply with the contract by making payments therefor within 10 days, but no advantage was taken of this, and hence, as a legal proposition, I am satisfied that the evidence shows that all defaults in delivery of lumber and all defaults in payment at the dates specified were waived by the parties by their mutual course of dealing, excepting only payment for the delivery of lumber made on or about January 10, 1903. That was the last delivery made, and payment for this lumber was due within 10 days thereafter. Matters were then strained, and each party, as it had the right, was insisting upon strict performance. In February, Vanhorn called for more lumber, or went to the defendant's place of business for the purpose, as he said, of obtaining further shipments of lumber. The defendant company then stated that it would deliver no more lumber until payment had been made for the lumber delivered prior to that time and not paid for. This demand included, of course, payment for the delivery of January 10, 1903. The defendant company had the right, as a condition of delivering more lumber, to exact payment for that delivery. It had no right to demand and exact payment for the prior shipments as a condition of delivering more lumber under the contract. Strict performance in payments as to such prior deliveries had been waived, but nothing had been said or done that waived payment according to the terms of the contract for the delivery of lumber made January 10th. If Vanhorn or W. E. Kelley & Co. desired more lumber under the contract, it was the duty of the person entitled to such lumber to make payment for or tender payment for the delivery of January 10th, and until that was done the defendant company had the right to refuse to deliver more lumber under the contract. There is no evidence in this case which shows or tends to show that payment for the delivery of January 10, 1903, was either waived or extended, and W. E. Kelley & Co. were in default, and Vanhorn, if he owned the contract and was entitled to performance under it, was in default in that it or he did not pay or tender payment for the January 10th delivery. As all defaults in delivery prior to that date had been waived, the plaintiff's assignor, Vanhorn, in this action |