Ashland Lumber Co. v. Detroit Salt Co.

• Decision Date: 01 April 1902
• Citation: 114 Wis. 66,89 N.W. 904
• Parties: ASHLAND LUMBER CO. v. DETROIT SALT CO. ET AL.
• Court: Wisconsin Supreme Court

114 Wis. 66

89 N.W. 904

ASHLAND LUMBER CO.

v.DETROIT SALT CO. ET AL.

Supreme Court of Wisconsin.

April 1, 1902.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by the Ashland Lumber Company against the Detroit Salt Company and others. There was a judgment in favor of defendants, both as to plaintiff's cause of action and as to a counterclaim interposed by them, and both parties appeal,--defendants, however, only as to the counterclaim allowed. Reversed.

It appears from the record, and is undisputed, that during the times mentioned the plaintiff was a corporation created and organized under the laws of Wisconsin, having a sawmill and place of business at Ashland; that during the same times the defendant Detroit Salt Company was a corporation created and organized under the laws of Michigan, and having its principal office at Detroit, in that state, and the defendant Thompson Bros. was also a corporation created and organized under the laws of Michigan, having its principal office at St. Claire, in that state; that during the times mentioned the two Michigan corporations and the defendant A. Miller, Jr., constituted a copartnership doing business as manufacturers of heading and staves, under the firm name of Ashland Cooperage Company, at Ashland; that May 10, 1899, the plaintiff entered into a written contract with the Ashland Cooperage Company, wherein and whereby the plaintiff agreed to furnish slabs, edgings, and trimmings as they came from the plaintiff's mill, and the Ashland Cooperage Company agreed to take the same from the elevators, and to manufacture the same into heading, paying the plaintiff 60 cents per 1,000 pieces for all manufactured, guarantying that the number of pieces manufactured would net the plaintiff $25 for each 200,000 feet of lumber manufactured--the size of the pieces to be 6 1/2 inches by 5/8 inches by 20 inches; the plaintiff to furnish piling room for drying purposes, dock room for shipping, and the necessary power in the mill for manufacturing. The Ashland Cooperage Company were not, however, to interfere with any machinery then in operation in said mill. The Ashland Cooperage Company were to furnish their own machinery, and make all connections necessary for the manufacture of said stock, and to properly dispose of all refuse that the defendants might make. Payment to be made by the Ashland Cooperage Company on the 1st day of each month for all stock manufactured the preceding month. Such contract was to be in force during the sawing seasons of 1899, 1900, and 1901. September 28, 1899, the plaintiff commenced this action to recover $1,395, as the balance then due the plaintiff from the defendants under such contract, with interest from that date. In addition to alleging the formal parts mentioned, and the substance of such contract, the complaint alleged, in effect, that from June 23, 1899 to July 31, 1899, there was manufactured at the plaintiff's mill 5,120,000 feet of lumber, and in August, 1899, there was manufactured at the plaintiff's mill 4,080,000 feet of lumber, and from September 1, 1899, to September 26, 1899, there was manufactured at the plaintiff's mill 3,280,000 feet of lumber, making in all 12,480,000 feet of lumber; that there became due and payable from the defendants to the plaintiff therefor, according to the terms of such contract, at the rate of $25 for each 200,000 feet of lumber manufactured, the sum of $1,560, upon which the defendants paid to the plaintiff the sum of $165 prior to July 31, 1899, and that there remained due and payable from the defendants to the plaintiff under the terms of the contract, before the commencement of this action, the sum of $1,395, no part of which had been paid; that the defendants had broken the terms of the contract, and refused to perform the same on their part, by neglecting and refusing to pay the sums becoming due as aforesaid under the contract on the 1st of each month for the stock manufactured the preceding month, and that the plaintiff had fully performed the contract, and all the conditions and terms thereof on its part to be performed. The defendants answered jointly, and expressly admitted the incorporation of the plaintiff and two of the defendants, and the partnership of the three defendants, as alleged in the complaint, and the payment to the plaintiff by the defendants of $165 prior to August 10, 1899, but expressly denied any knowledge or information sufficient to form a belief as to whether the quantity of lumber manufactured at the plaintiff's mill was as alleged in such complaint during all or any or either of the periods therein mentioned, and, except as specifically admitted, denied each and every allegation of the complaint. The defendants further answered, and for a second and separate defense, and as a counterclaim, alleged, in effect, the incorporation and organization of the plaintiff and two of the defendants, and the making of the contract, as mentioned; that the plaintiff thereby agreed and became bound, in consideration of the promises of the defendants therein contained, to furnish to the defendants, at its sawmill, slabs, edgings, and trimmings of such kind and quantity as to yield 41,667 pieces of heading for each and every 200,000 feet of said lumber during the sawing seasons of 1899, 1900, and 1901, and to furnish to the defendants, for the purpose of manufacturing such heading, sufficient and necessary power, so that the heading machinery of the defendants would be properly driven and could be properly operated, and to provide for and furnish to the defendants sufficient room for handling such material, and for storing such product on its dock preparatory to shipping; that immediately upon the execution of the contract the defendants shipped to Ashland, and set up in the plaintiff's sawmill, the requisite machinery for the carrying out of the contract on their part, and duly performed all the conditions of that contract on their part to be performed, and June 26, 1899, the defendants began operations under that contract; that the plaintiff did not at any time furnish to them sufficient or necessary power for the manufacturing of such heading, or for the driving and operating of the defendants' heading machinery; that, for want of power, they could not, prior to August 28, 1899, manufacture more than 11,000 pieces of heading per day of 10 hours, and that they were during that period equipped with men and machinery and fully prepared to manufacture on an average of 19,000 pieces of heading per day of 10 hours, and would have done so if the plaintiff had furnished them sufficient or necessary power to properly operate their heading machinery, as it agreed to do; that the plaintiff failed, neglected, and refused to furnish the defendants at any time after August 28, 1899, slabs, edgings, and trimmings, or either or any of said kinds of material, in such quantity or of such kind as to yield 41,667 pieces of heading, or a greater number than 12,500 pieces for every 200,000 feet of lumber manufactured by the plaintiff after that date; that the plaintiff did not furnish to the defendants sufficient or necessary room for the handling of such material, or the storing of such product on its dock; that for the purpose of thwarting the performance of the contract on their part, and compelling them to throw up the same, the plaintiff from and after August 28, 1899, until the attachment of the defendants' heading machinery, willfully sawed slabs at its sawmill in such manner and of such dimensions as to make them practically worthless for the purpose of heading, and so as to render it impossible to get from them more than 30 per cent. of the quantity of heading which the plaintiff by its contract was required to furnish to the defendants; that in pursuance of the plaintiff's purpose the plaintiff willfully hampered and embarrassed the defendants in the prosecution of their work under the contract, by depriving them of the necessary room for the handling of the material and interfering with their employés, and September 28, 1899, caused to be issued out of the circuit court a writ of attachment, and caused the same to be levied on all the property of the defendants at the plaintiff's mill, including the heading manufactured by the defendants as...