Allen v. Murray

• Citation: 57 N.W. 979,87 Wis. 41
• Parties: ALLEN ET AL. v. MURRAY.
• Decision Date: 30 January 1894
• Court: United States State Supreme Court of Wisconsin

87 Wis. 41

57 N.W. 979

ALLEN ET AL.

v.MURRAY.

Supreme Court of Wisconsin.

Jan. 30, 1894.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by Thomas Allen and another against C. S. Murray. There was judgment for plaintiffs, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought by the firm of Allen & Watterson to recover against the defendant the damages claimed by them by reason of the breach by the defendant of a contract that they made with him November 18, 1891, by which they agreed to cut, haul, and deliver into and put afloat in Amnicon river, and drive to the mouth thereof, all the merchantable pine saw logs growing and being on the northwest quarter of a certain section 10 that would scale nine inches at the small end, the cutting and hauling to be fully completed by April 15, 1892, and delivery to be made afloat as soon after as said river might be opened, all for the price of $3.51 per 1,000 feet, board measure, payable in certain installments, the last of which was to be paid October 1, 1892. It was alleged that the plaintiffs commenced to perform on their part, and to that end commenced to build, and built, logging roads, purchased and procured tools, implements, supplies, and quarters, and employed men and teams, and commenced to cut, skid, haul, and place on proper rollways on said river said timber, and did properly cut and deliver 58,000 feet thereof; but that on the 6th of March, 1892, the defendant, without just cause, forced and compelled the plaintiffs, against their wishes, to quit said work, and forbade them to cut or haul any more of said timber, when there was at least 1,000,000 feet thereof on said lands, and the plaintiffs were ready, willing, and able to fully perform the contract on their part within the time so limited, whereby they had lost the profits thereof, namely, $1,500. The defendant claimed in his answer, in substance, that the plaintiffs had not been damaged by any action or lack of action on his part; that the plaintiffs were unable to perform the contract, and had not the necessary means or supplies; that they assented to quitting work at the time stated, and afterwards logged elsewhere, making more than they could have made had they continued at work on said contract; that they had been paid upon settlement for all the work they performed, and had waived all other rights under the contract. Upon trial before a jury it appeared that at the time the contract was made the plaintiffs made a similar one with one Carmichael, to cut, haul, and deliver, at the same point on the river, the pine timber on the southwest quarter of the said section, and the said Carmichael also owned other pine timber near by, which he desired cut and banked; that the plaintiffs, by March 6, 1892, had so nearly performed their contract with Carmichael that it could be completed within three days, and had made three roads in a north and south direction through the defendant's land, over which much of the timber from Carmichael's tract had been hauled, and over which that on the defendant's land could be also hauled, to or near the mouth of the river; that they had cut, hauled, and banked 58,000 feet of the defendant's pine. Evidence was given tending to show that they had supplies, implements, etc., and 37 men and the necessary teams in their employ, and would be able to perform their contract within the time limited, and that the necessary logging roads for that purpose had for the greater part been constructed. Testimony was also given in support of the contrary contention, and it appeared that at this time--March 6th--there came a thaw, and there were indications of a break-up and ending of the logging season, so that upon that day (Sunday) the defendant's agent came to the plaintiffs' camp, and ordered them to quit work, and forbade them cutting any more pine, alleging that the logging season was over. Two or three days afterwards a severe snow storm occurred, and the plaintiffs sought consent of the defendant to proceed with and perform their contract, but this was refused. It appeared that the defendant afterwards paid plaintiffs for cutting and banking the 58,000 feet at the contract price, and that later in the season the plaintiffs logged and put in other timber for Carmichael, after having considerably reduced their logging force. Considerable evidence was given pro and con as to whether the plaintiffs could have performed their contract before the logging season closed, which was about the end of March, and whether they had supplies and men and teams to enable them to do so, and what it would have cost them after March 6th to have completed it, and what profits, if any, would have been realized. Upon these points the testimony took a wide range; that on the part of the plaintiffs showing the cost per 1,000 at $2 to $2.50, and on the part of the defendant that it would be much more, and it was placed by some witnesses as high as $4 per 1,000. The court submitted to the jury, in substance, whether the plaintiffs, on the 6th of March, 1892, were willing and able to proceed and complete the contract according to its terms; whether the plaintiffs informed the defendant that they could not carry out their contract as agreed; and whether, taking them at their word, the defendant in good faith forbade any further cutting under it, and saying that in such case the plaintiffs could not recover; nor could they if ordered to stop work, and they consented thereto. That the profits of the plaintiffs, if entitled to recover, would be such as they could have made by putting in the 950,000 feet of timber, which it was admitted there was on the land; and such profits would consist of the difference between the contract price of $3.51 per 1,000, amounting to $3,334.50, and the amount the plaintiffs would have been required to expend after March 6, 1892, to complete the work, including the value of the supplies then on hand. That to this difference might be added interest from October 26, 1892, the date of the suit. The rule of damages was twice repeated, and fully explained, and the jury were instructed that if there were no such profits they should find for the defendant. The court defined, in substance, the preponderance of evidence to be that which satisfied the jury to a reasonable certainty; that, if they concluded “that any witness had testified willfully false in regard to any matter material to the case, then they had a right to...