Blewett v. Gaynor

• Decision Date: 23 September 1890
• Citation: 46 N.W. 547,77 Wis. 378
• Parties: BLEWETT ET AL. v. GAYNOR.
• Court: Wisconsin Supreme Court

77 Wis. 378

46 N.W. 547

BLEWETT ET AL.

v.GAYNOR.

Supreme Court of Wisconsin

Sept. 23, 1890.

Appeal from circuit court, Winnebago county.

Geo. E. Sutherland, for appellant.

T. W. Spence and E. S. Bragg, for respondents.

TAYLOR, J.

This action was commenced originally by Edmund Blewett against the appellant to recover for the sum claimed to be due Blewett from said Gaynor upon a written contract signed by the said Blewett and Gaynor for cutting and putting in the river a large quantity of pine logs in the winters of 1883-84, and of 1884-85. After this action was commenced the appellant claimed that the contract was in fact made by Blewett and Patrick Gaynor, a brother of James Gaynor, of the one part, and himself of the other part, and thereupon such proceedings were had in the action that the said Patrick Gaynor was made a co-plaintiff with Blewett; and, for the purposes of this action and of this appeal, the said respondents, Blewett and Patrick Gaynor, must be considered as the joint makers of the contract sued upon, and the money, if any, due upon said contract, must be considered as due to the plaintiffs jointly. The complaint sets up two causes of action,--one for the balances claimed to be due for cutting and putting in logs in the winter of 1883-84, and in the winter of 1884-85; and a second cause of action to recover damages of the defendant for preventing the plaintiffs from cutting and putting in other logs in the winter of 1884-85. This second cause of action is not involved in this appeal, as the trial court found against the plaintiffs as to that cause of action, and no appeal is taken by the plaintiffs from the judgment rendered on the action. The following is a copy of the contract upon which the action is brought, omitting the descriptions of the lands from which the logs were to be cut: “This agreement, made and entered into this ______ day of November, 1883, by and between Patrick Gaynor, of Chippewa Falls, Wisconsin, and Edmund Blewett, of the town of Oakfield, county of Fond du Lac, Wisconsin, parties of the first part, and James Gaynor, of the city and county of Fond du Lac, Wisconsin, party of the second part, witnesseth: That the parties of the first part, for and in consideration of the payments and covenants hereinafter set forth, to be made and performed by the party of the second part, hereby agree, during the winters of 1883-84, 1884-85, 1885-86, 1886-87, to cut and put into the Burnette and main Chippewa rivers all the timber belonging to the party of the second part, on all the lands hereinafter described; that they, the parties of the first part, agree that they will put in no other timber than that belonging to the party of the second part during said seasons. And the party of the second part hereby agrees to pay to the parties of the first part for all of said timber so cut and so put in from the following described lands, to-wit, [describing them,] $3.50 per 1,000 feet, and for all of said timber so cut and so put in from the following described lands, to-wit, [describing them,] at the rate of $4 per 1,000 feet; the timber upon the last-named lands to be estimated and agreed upon before being cut and paid for on such estimate. And the said party of the second part agrees to pay during each winter of said years--that is, on the 15th days of January, February, and March--two dollars per thousand feet on the quantity of timber cut and put in at such times, and, on the closing of the season, when the camp shall be broken up, 50 cents per thousand feet on all the timber cut and put in up to that time; that is, $2.50, in all, per thousand, on all timber cut and put in. The balance due on the cut of each winter to be paid for in equal installments on the 1st day each of June, July, August, and September, in each of the years 1884, 1885, 1886, and 1887. [Signed] EDMUND BLEWETT. [Seal.] JAMES GAYNOR. [Seal.] In presence of W. A. ELDREDGE.” The plaintiffs in their complaint allege, after setting out the contract between the parties,as above stated, “that, under and in pursuance thereof, and in performance of his undertaking therein, they cut and put into the said rivers parcel of the pine growing upon the said descriptions of land first above recited, and for which the defendant agreed to pay the sum of $3.50 per thousand feet, as aforesaid, during the logging season of the years 1883 and 1884, a large quantity of logs, to-wit, 7,818,160 feet, and thereafter, on the 12th day of September, 1884, these plaintiffs and the defendant had an accounting of and concerning the quantity of lumber cut by these plaintiffs under said contract, during said winter of 1883-84, and of the payment made by the defendant thereon, and there was then and there found to be due and in arrears from the defendant to these plaintiffs the sum on such contract for such logging so done as aforesaid by these plaintiffs the sum of $3,087.07, and with interest from the 1st days of June, July, August, and September, 1884, upon such proportion of the balance as became due and payable on said days respectively; that is to say, an equal one-fourth thereof. And the said defendant did then and there undertake and promise to pay the same to these plaintiffs; but, although often requested, he has not paid the same, nor any part thereof. And afterwards, in the winter of 1884-85, these plaintiffs in further performance and fulfillment of the said contract on their part, off from the said lands first above described, as aforesaid, in the $3.50 per thousand class, cut and put in a large quantity of said logs, to-wit, 2,441,890 feet, and the said defendant has advanced and paid thereon, under said contract, the sum of $5,102.28, and no more, leaving remaining due and unpaid the sum of $3,444.33, with interest on an equal one-fourth part thereof from the 1st day of each of the months of June, July, August, and September, in the year 1885, and to pay the same, or any part thereof, the said defendant has wholly neglected and refused; but, on the contrary, heretofore, on or about the 20th day of June, 1885, the said defendant set up and pretended, and still pretends, that the sum so by him paid as last aforesaid, was in full for all the lumber cut and put in in the winter of 1884-85,--all of which is untrue.” To this complaint the defendant answered, admitting the making of the contract as set out in the complaint, and admitting that, under said contract, during the logging season of 1883-84, the plaintiffs cut 7,818,160 feet, and during the season of 1848-85, 2,441,610 feet, but no more. The answer then further alleges “that for the cutting and hauling of the said timber during both of said seasons the defendant has fully paid the plaintiffs; that after the close of the logging season of 1884-85, the defendant had an accounting with the plaintiffs, and a full and complete settlement and adjustment of all matters and transactions arising from or growing out of said logging contract; and that at that time the defendant paid to the plaintiffs the full and complete balance found upon such settlement to be their due. And the defendant here pleads and alleges payment in full of the plaintiffs' demands under and by virtue of said contract. The defendant further alleges and charges the fact to be that the plaintiff Edmund Blewett is now prosecuting this action in the name of himself and Patrick Gaynor, plaintiffs, against the wishes and consent of said Patrick Gaynor, and that as a matter of fact said Blewett has himself received, as the proceeds of the logging business conducted by the plaintiffs during the two logging seasons,--1883-84, and 1884-85,--more than the entire profits of the said logging business for the said two logging seasons; that a true and correct statement, as this defendant is informed and verily believes, of the moneys received and appropriated by said Blewett out of this defendant's payments on said logging contracts, and out of the moneys either paid directly by this defendant to said Blewett or paid for him and by him credited and allowed on said contract, is hereunto annexed, marked ‘Exhibit B,’ and made a part of this answer. The defendant in further answering says that a true and correct statement of the moneys paid by this defendant, or paid for him, to the plaintiffs for the cutting and hauling of logs by the plaintiffs during said two logging seasons is hereunto annexed, marked ‘Exhibit C,’ and made a part of this answer; that said Exhibit C also contains a true and correct statement of other sums of money properly and justly applicable upon the said logging contract, and which statement shows that the plaintiffs are properly and justly chargeable with a sum largely in excess of the amounts they actually earned under said contract. The defendant, for a further answer to both causes of action set out in the plaintiffs' amended complaint, denies each and every allegation of said complaint, and every matter and thing therein contained, except as herein admitted, qualified, or explained.” The remainder of the answer sets up several counter-claims, in regard to which no evidence was given on the trial, and which were before judgment withdrawn from the consideration of the court. The case must therefore be determined upon the pleadings above set forth, and upon the testimony of the plaintiffs, who were both called by the plaintiffs, and testified in the case. The defendant offered no witnesses to sustain the allegations of his answer, but relies solely upon the statements made by the plaintiff Patrick Gaynor, who was examined by the plaintiffs, and cross-examined by the defendant. The case was referred to a referee to hear, try, and determine the same. Upon the pleadings and evidence offered by the plaintiffs the referee decided that there was sufficient evidence to show a settlement and full payment of the plaintiffs' claims before the commencement of the action, and he rendered a judgment in...