NOTE BY A WOOD COLLECTING LAWYER.
By Bernard G. Hildebrand.
President Opdyke in the recent article..."America's Number One Wood Hunter" appearing in the "Profitable Hobbies" magazine for Feb., 1949, page 42, correctly emphasizes the necessity for collecting wood specimens by botanical names and the practical futility of dealing with ordinary lumber companies for scientifically designated specimens. Trade names and practices in the lumber business serve certain good purposes but they are inexact for purposes of the true wood collector. Proof of this assertion may be made simply by examining various texts or scientific wood lists.
On occasions failure to describe woods or lumber properly and unambiguously, preferably by scientific names, has resulted in serious disputes between the various parties and in some instances the courts have been appealed to for a solution of the controversy. Oral evidence to explain a contract and application by courts of various rules of interpretation to determine intention at times may produce a peculiar result, perhaps quite expensive to the party drawing the contract or relying upon its simple written terms.
An interesting illustration of failure to describe wood properly even for general trade purpose is found in the law - case of the New York Central Railway Company vs. Warren Ross Lumber Co., 190 N.Y.S. 835 decided in the year 1931. In this case the plaintiff had shipped various carload lots of lumber for the defendant and the question arose whether the freight charges should be based on a general tariff or a special schedule providing for the higher rates and relating to:
"Woods, foreign (cocobolo, ebony, lignum vitae, Spanish cedar, mahogany, rosewood, and other foreign woods except Canadian woods and Mexican pine lumber)."According to the report of this suit the lumbers shipped were red and white luan, tangile, and other species of Philippine lumber grown in the Philippine Islands and commonly known as "Philippine mahogany."
It appears at the trial the defendant, among other things, convinced the court that "Philippine mahogany" was used as a substitute for "African and American mahogany", that the latter was about twice as expensive and that the lumber in question weighed about 3,200 lbs. per thousand feet and "the true San Domingo mahogany" weighed about 4,800 pounds per thousand feet. The court decided the issue for the defendant (I omit the court's discussion of the word "foreign") saying in part:
"...All of the woods specified, as has been noted above, are expensive commodities, the responsibility for the carriage of which would be greater than in the case of cheaper materials..."These facts establish satisfactorily in my judgement that the wood in question was not the mahogany mentioned in the schedule quoted. What was intended is what is generally known by the name of mahogany, and that that is the kind of wood intended rather than the cheaper substitute article here involved is shown by the woods specifically enumerated in the schedule, namely cocobolo, ebony, rosewood, etc. all of which are heavy tropical or subtropical lumber of high cost. The denomination of this wood as Philippine mahogany in the trade is no more conclusive of the question than the name 'German measles' is conclusive to that disease being measles, or the name 'horsechestnut' as to that tree being a chestnut.
Or, I may add, of "Brazilian cherry" being a cherry species. We Pennsylvanians are sensitive to that one, in particular.