Barker & Stewart Lumber Co. v. Edward Hines Lumber Co.

• Decision Date: 13 March 1905
• Docket Number: 102.
• Citation: 137 F. 300
• Parties: BARKER & STEWART LUMBER CO. v. EDWARD HINES LUMBER CO.
• Court: U.S. District Court — Western District of Wisconsin

137 F. 300

BARKER & STEWART LUMBER CO. v. EDWARD HINES LUMBER CO.

No. 102.

United States Circuit Court, W.D. Wisconsin.

March 13, 1905

Richard Sleight and John M. Olin, for plaintiff.

Herrick Allen, Boyesen & Martin and R. M. Bashford, for defendant.

SANBORN District Judge.

The defendant at the close of the plaintiff's testimony moves to strike out all evidence relating to profits claimed by plaintiff, and further to exclude all evidence given on behalf of the plaintiff, and to direct a verdict in favor of the defendant, as to the first cause of action.

The most important question relates to the construction of the contracts made between the defendant and the assignors of the plaintiff, a copartnership known as Barker & Stewart. The claim of the plaintiff is for damages based upon the act of the defendant in withdrawing from the contract between the parties certain timber known as the Bigelow timber, and some 7,000,000 additional known as the Hines Lumber Company timber, and sawing it at the defendant's mill. It is claimed by the plaintiff that this timber was brought within the contract by the last written agreement made between them while the defendant claims that it had the option under that agreement to so withdraw such timber.

On June 14, 1898, a contract was made between Weyerhaeuser & Rutledge and the defendant, providing that Weyerhaeuser & Rutledge would, from lands owned by them in townships 48 and 49 ranges 7 and 8 west, cut into saw logs all the merchantable pine on such lands, estimated at 187,000,000 feet, and would deliver said logs to the Hines Company at certain booms on Chequamegon Bay. Such logs were to be delivered in quantities of not less than 20,000,000 feet or more than 40,000,000 feet annually until all such timber was delivered. The defendant company was to give notice in writing to Weyerhaeuser & Rutledge prior to November 1st each year of the amount it desired to have delivered during the ensuing year. Such notices requiring the delivery of the full amount of 40,000,000 feet have been given for each year, including the year 1905. Deliveries of logs under this contract were to begin after January 1, 1899, so as to permit the manufacture of the logs by March 1, 1899, and Weyerhaeuser & Rutledge agreed to make annual deliveries thereafter until all the logs were cut. The defendant company was to accept all such logs, and pay for the same within 90 days after the end of the month of delivery. On the 19th day of June, 1900, and in each year thereafter during the existence of the contract, defendant was to pay Weyerhaeuser & Rutledge interest from June 14, 1899, on the stumpage value of the logs delivered during the preceding year, but on June 14th in each year there was to be credited to the defendant company interest on all cash payments made by it for logs received during the preceding year. After further provision in respect to a contract made by Weyerhaeuser & Rutledge with the Standard Construction Company for the cutting of the logs, the lands are described upon which the logs are situated, and certain other agreements were made, not material to this controversy.

On October 6, 1898, the first contract between Barker & Stewart and the defendant company was made. It recites that the defendant has made the Weyerhaeuser & Rutledge contract, and in general its provisions, and that the Hines Company was desirous of having said logs manufactured into lumber at or near the point of delivery, and Barker & Stewart desired to secure a contract to manufacture a portion of said logs into lumber, and were familiar with the terms of the Weyerhaeuser & Rutledge contract. It was therefore agreed that Barker & Stewart should prior to March 1, 1899, build, erect, and fully equip a sawmill capable of sawing at least 35,000,000 feet of lumber during each sawing season, working both night and day, and that they would build the mill and have it ready to commence manufacture on or before March 1, 1899. It was further agreed by Barker & Stewart that between March 1st and December 1st of each year thereafter, until all the said logs were manufactured into lumber, they would at their sawmill manufacture into merchantable lumber, in a proper manner, not less than 25,000,000 or more than 35,000,000 feet of the Weyerhaeuser & Rutledge logs. The quantity to be manufactured each year, within the limits so specified, was to be fixed by the defendant company giving notice in writing to Barker & Stewart on or before November 1st each year of the quantity which it desired to have manufactured into lumber during the next sawing season. Such notices have been given for each year at the full amount of 35,000,000. Barker & Stewart further agreed to continue the manufacture at the full capacity of the mill until the close of the sawing season each year, and manufacture all logs delivered to them by defendant within the specified limits, and would not manufacture for others at any time when there were sufficient of defendant's logs available to keep the mill running to its full capacity for a week unless the defendant should, in writing, consent thereto. It was further provided that the lumber should be sorted and piled into 35 sorts or piles. They further agreed to manufacture lath which would grade No. 1. Various other provisions are contained for the manufacture, sorting, and piling of the lumber. Barker & Stewart further agreed to accept all the logs so to be manufactured as delivered by Weyerhaeuser & Rutledge, and such delivery should be considered a complete delivery under the contract of October 6, 1898. Defendant, on its part, agreed to deliver such logs up to the amount to be manufactured in each year. Then comes the following provision:

'But it is understood that if under the said contract of June 14, 1898, or by other agreement with the said Weyerhaeuser and Rutledge the said second party (Hines Lumber Company) shall have more than 35,000,000 feet, board measure, of logs covered by said contract of June 14, 1898, cut and delivered as aforesaid in any one or more years, then the second party shall have the right to have such excess manufactured at mill selected by it other than the one owned by the first party (Barker & Stewart).'

Defendant should only be required to deliver to Barker & Stewart such logs as were delivered by Weyerhaeuser & Rutledge under their said contract, and no damage was to accrue to or be recovered by Barker & Stewart on account of nondelivery of logs for any reason specifically mentioned in the Weyerhaeuser & Rutledge contract, or because of the nonperformance of that contract for any other reason not the fault of the defendant. Barker & Stewart were to receive for sawing $1.85 per thousand for lumber, and 85 cents for lath. It is further provided that, if the mill should be accidentally destroyed by fire or otherwise, Barker & Stewart will rebuild within 90 days after such destruction, and will then proceed with the performance of the contract. No damage was to accrue to defendant for the suspension of operations during the 90 days, provided it should have the right, if it so desired, to have logs delivered under the Weyerhaeuser & Rutledge contract manufactured during said period at some other convenient mill in the vicinity; Barker & Stewart to pay any excess over the contract price for such manufacture. If Barker & Stewart should default in the performance of the contract, defendant might stop further manufacture, and cause the Weyerhaeuser & Rutledge logs to be manufactured at other mills, and Barker & Stewart were to pay any damages which defendant might thereby suffer. Provision was made for the assignment of the contract.

On February 19, 1902, the second or modifying contract was made between Barker & Stewart and defendant, the first provision of which is as follows:

'Second party agrees in addition to the timber contracted under the said above named contracts to be furnished the first party for sawing to also give and furnish the first party for sawing all of the timber which the second party now owns, or which it may acquire during the life of said contracts as hereunder modified, in the townships and ranges covered by the descriptions mentioned in the above contract of October 6th, 1898, such logs to be delivered at the place specified under said contract. First party agrees to receive said logs at such place, and manufacture same as provided in last mentioned contract as hereby modified. It is agreed that all of the provisions of said contract of October 6th, 1898, as hereby modified, shall apply on all additional logs herein mentioned as though such logs had been specifically mentioned in said three contracts as hereby modified.'

This provision applies to the Bigelow and Hines timber in question, amounting to about 71,000,000 feet.

This contract provided that, instead of 35 sortings or piles there should be 75; and certain other provisions were made for more particular care of the lumber to be sawed and loaded, and also that defendant was to take all of the lumber manufactured from its logs, including 4-foot lumber, and that all offal, including trimmings, sawdust, and what remains of the slabs and edgings after making Nos. 1, 2, and short lath, should belong to 'second party' (that is, the defendant), but, if second party should consider that any portion of the product was not worth the saw bill, then such portion should become the property of Barker & Stewart, without charge; defendant agreeing to take all of Nos. 1, 2, and short lath and 4-foot lumber, and pay the saw bill. The price for sawing was increased from $1.85 to $2.02 1/2 for lumber, and from 85 cents to $1.20 for lath per thousand pieces and $1 per thousand pieces for the short lath. Also $1.25 per...