The McAllister Lumber & Supply Company v. Eldora Resort & Power Company

[No. 6358.] The McAllister Lumber & Supply Company v. Eldora Resort & Power Company. Contract — Certainty—A contract for the sale and, delivery of a particular commodity, not specifying any amouimt or quantity, will not sustain an action for a failure to' deliver. It binds the parties no further than may accord with their convemience or pleasure. Error to Boulder District Court — Hon. JAMES EGarrigues, Judge. Mr. Richard H. Whiteley, for plaintiff in error.. Messrs. Stuart & Murray, for defendant in error.. [MAJORITY — Mr. Justice Musser] Mr. Justice Musser delivered the opinion of the court: This action was commenced by the lumber company to recover damages for an alleged failure to deliver timber, according to a written contract, wherein the defendant sold and agreed to deliver timber, and the plaintiff agreed to receive and pay for the same. The complaint sets out the written contract and alleges in substance that the defendant delivered timber for several m'onths, and then ■ ceased and refused to deliver any more, in consequence of which the plaintiff was damaged. To the complaint a demurrer •was filed on the grounds that the complaint did not state facts sufficient to constitute a cause of action, and that the complaint was uncertain as to the identity, amount and quantity of timber which it concerned. The demurrer was sustained, the plaintiff elected to stand by its complaint, and judgment was entered against it for costs. That judgment and the ruling of the court in sustaining the demurrer is now before this court for review on error. The main argument goes to the certainty of the contract, which was set out in full in the complaint, and upon which the action is based. A court should uphold a contract whenever it can fairly do so. Because of this, much consideration has been given to this complaint in an endeavor to spell out, with reasonable certainty, what timber the parties desired to buy and sell, or the amount or quantity thereof. It has been impossible to do this. All that can be said with any certainty is that the parties agreed to buy and sell timber. What timber, or the amount thereof, seems more than anything else to be such timber and to such an amount as the one party may desire to deliver and the other to receive. If this court were to attempt to settle this uncertainty, it would be making a .contract for the parties. As this can not be done, the parties must be left with the contract which they made, and the judgment is, therefore, affirmed. ■ Judgment affirmed,. Mr. Justice Gabbert and Mr. Justice White concur.