Boyington v. Sweeney

• Decision Date: 20 May 1890
• Citation: 77 Wis. 55,45 N.W. 938
• Parties: BOYINGTON ET AL. v. SWEENEY.
• Court: Wisconsin Supreme Court

77 Wis. 55

45 N.W. 938

BOYINGTON ET AL.

v.SWEENEY.

Supreme Court of Wisconsin.

May 20, 1890.

Appeal from circuit court, Price county.

Cate, Jones & Sanborn, for appellants.

H. H. Hayden, for respondent.

TAYLOR, J.

The plaintiffs, Boyington & Atwell, brought this action against the respondent, Sweeney, to recover damages for the non-performance of a contract of which the following is a copy, viz.: “This agreement, made and entered into this 15th day of July, 1886, by and between James Sweeney, of Price county, Wisconsin, party of the first part, and Boyington & Atwell, of Price county, Wisconsin, party of the second part, witnesseth, that said party of first part does sell to the party of the second part all pine logs cut and to be cut from all lands owned by said party of first part in section thirty (30,) and section (19,) township thirty-nine (39,) range one (1) east. In consideration of which, said party of second part agrees to pay to said party of said first part, for all logs that will scale twelve inches at top end, and one-half sound, the sum of five dollars and fifty cents per thousand feet, board measure, and for all logs less than twelve inches at top end, and that will not scale one-half sound, the sum of three dollars per thousand feet, board measure. Said party of first part agrees to log at least one million five hundred thousand feet of said logs this summer, and the balance during the spring of 1887, and furthermore agrees to load all logs on cars at Sweeney's side track of Wisconsin Central Railroad Company, as ordered by said party of second part, and to furnish crew enough to load forty cars and more, if practicable, per day, the logs to be scaled by a competent scaler, to be agreed upon by both parties, and further agree that the title to said logs shall vest in the said second named party as fast as loaded on cars, and that said party of first part will forever warrant and defend the title to said logs in the second named party free and clear of all incumbrances, payments to be made as follows: One thousand dollars cash, and note for one thousand dollars payable in sixty days without interest; balance of value of first two-thirds, when demanded, about November 1st, 1886, of all logs scaled; the remaining one-third to be paid January 10th, 1887. JAMES SWEENEY. [Seal.] BOYINGTON & ATWELL. [[[Seal.] B. H. SUNDERLAND, Witness. G. J. ALTRECHT, Witness. As amendment to the foregoing contract, party of the first part agrees to load forty cars or more, if in his power. JAMES SWEENEY. [Seal.] BOYINGTON & ATWELL. [Seal.] B. H. SUNDERLAND, Witness. G. J. ALTRECHT, Witness.” The plaintiffs allege several breaches of this contract on the part of the defendant: First, that the defendant refused to load 1,179,550 feet of said logs on the cars as he contracted to do, and that plaintiffs were compelled to and did pay the sum of $854.19 for loading the same; second, that plaintiffs had advanced to the defendant on said contract, in money, merchandise, etc., $15,625.43, and $172 to pay the scaler, half of which should be paid by the defendant, making the whole amount advanced $15,711.43, and that the whole contract price of the logs received on said contract was the sum of $14,052.42; third, that plaintiffs have requested and demanded of the defendant that he deliver to them all of the pine logs cut by the defendant upon the lands described in the contract during the summer of 1886 and the spring of 1887, or pay back to the plaintiffs the sum so overpaid by them on said contract, and that the defendant has refused so to do. They claim damages for the sum of $1,659, with interest from May 1, 1887, and also for the sum of $854.19 for the expense of loading said logs, and interest from May 1, 1888. The plaintiffs, as a separate cause of action, claimed the further sum of $541.22 for work and labor performed, and goods sold and delivered to the defendant, and for money paid out and expended by the plaintiffs for the defendant, at his request, between the 6th of July, 1886, and the 1st of December, 1887, and claims judgment for the sum of $2,513.20 with interest from May 1, 1888, and for the further sum of $268.70 with interest from January 1, 1888, and the further sum of $600 damages, etc.

To this complaint the defendant answered, admitting the contract set out in the complaint, and alleges that by said contract the plaintiffs agreed to furnish at said Sweeney's side track sufficient cars on which to load said logs, which the defendant should put and place at said side track, and to furnish the same in a reasonable time after said logs should be put in and placed at said side track by the defendant. The defendant then alleges that, under said contract, he caused to be cut from the lands described in the contract 3,406,538 feet, board measure, and delivered said logs to the plaintiffs at said Sweeney's side track ready and fit to be there loaded on the cars, before the 15th day of March, 1887, and of these logs 3,039,123 feet would scale 12 inches at the top, and were one-half sound, and that those that would scale less than 12 inches at the top, or would not scale one-half sound, were in amount 367,415 feet. The answer further alleges that at all times from the 15th of March to the 10th of May, 1887, he was ready and willing to load said logs on the cars at said side track, and kept for that purpose a suitable crew of men; that a few days after the 15th of March, 1887, and several times thereafter and before the 10th of May, 1887, he notified the plaintiffs that the logs were at the side track ready to be loaded, and, that he was ready, willing, and desirous of loading the same, and requested the plaintiffs to furnish the cars for that purpose; that during all that time the plaintiffs neglected and refused to furnish any cars at said side track on which to load said logs. And the defendant further alleges that more than a reasonable time to furnish said cars had expired after said logs were placed by defendantat the side track ready to be loaded, etc., and that, by reason of the neglect of the plaintiffs to furnish such cars within a reasonable time for loading the same, the title of said logs, and the risk of injury thereto, had fully vested in the plaintiffs, and that said logs were their property on the 10th day of May, 1887. The answer then proceeds as follows: “And the defendant alleges that before the fire herein mentioned, and on or about the 10th day of May, 1887, he fully settled with the plaintiffs, the said contract, and the logging done thereunder, and all matters relating to the same, and it was then found and agreed between them that the quantity of logs which the defendant had put in for the plaintiffs under the said contract, and delivered at said side track, was, of the aforesaid first kind, 3,039,123 feet, and of the aforesaid second kind, 367,415 feet, as before stated, and that the contract price for the same as $17,817.41; and the plaintiffs then and there accepted the said logs, and all of the same, and assumed and took upon themselves the loading of said logs still remaining unloaded at said side track, at thirty-five cents per thousand feet, and agreed to and with the defendant to charge him that sum per thousand feet for the loading thereof, and the defendant then and there agreed to pay the plaintiffs that sum per thousand feet for their taking upon themselves the loading of said logs. And alleges, on information and belief, that at said time the quantity of said logs at said side track, and not loaded on cars, was about 1,900,000 feet, and the said price for loading the same was $665. And he alleges that afterwards, and about the 20th day of May, 1887, said logs at said side track caught on fire, and many of them were removed from said side track to save being burned; and this defendant immediately thereafter replaced the same at said side track ready for loading, and before the commencement of this action fully performed all the terms and conditions of said contract on his part to be done. And by reason of the foregoing the plaintiffs become indebted to the defendant in the sum of $17,152.41; and the same was due on the 10th day of May, A. D. 1887, and has not been paid in whole or in part, except so far as hereinafter set forth.” The defendant then answered, and by way of counter-claim set up the same facts as above stated in his answer, and claimed that he had fully performed the contract on his part, and that there was a balance due him from the plaintiffs on said contract of the sum of $1,526.98.

On the trial in the court below the jury found a verdict in favor of the defendant, and against the plaintiffs, for the sum of $500. The plaintiffs appeal to this court, and allege as errors “(1) that the court below, against plaintiffs' objections, admitted immaterial, irrelevant, and incompetent evidence; (2) that the court below erred in its instructions to the jury, and in refusing to instruct them as requested by the plaintiffs; (3) that the verdict is contrary to law and evidence; (4) that the court erred in denying plaintiffs' motion to set aside the verdict and grant a new trial.”

The contention made by the learned counsel for the plaintiffs is that, as the written contract between the parties does not state who shall furnish the cars upon which the logs were to be loaded at the switch, it was improper to admit parol evidence for the purpose of showing that the plaintiffs were to furnish them. This objection was not much relied upon by the learned counsel on the argument in this court, and it is evident to us that, in the absence of any evidence on the subject except the contract itself, the learned judge was right in instructing the jury that it was the duty of the plaintiffs to furnish the cars. The duty of the defendant in regard to the delivery of the logs under the contract ended when they were placed on the cars. By the terms of the contract, the...