Collette v. Weed
| Citation | 68 Wis. 428,32 N.W. 753 |
| Parties | COLLETTE v. WEED AND ANOTHER. |
| Decision Date | 22 March 1887 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from Fourth circuit, Manitowoc county.
Weisbrod, Harshaw & Nevitt, for appellants.
Vroman & Sale, for respondent.
This action was brought by the respondent to recover for an alleged shortage on a sale of logs made by the appellants to the respondent. The contract of sale upon which the action was founded was in writing, and the following are copies of the bill of sale and guaranty on which the action is founded:
“Know all men by these presents, that A. Weed & Co., of the village of West Depere, in the county of Brown and state of Wisconsin, of the first part, and for and in consideration of the sum of fifteen ($15,205.50) thousand and two hundred and five and fifty 50-100 lawful money of the United States to us in hand paid by Henry Collette, of the village of West Depere, in the county of Brown and state aforesaid, of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his heirs, executors, administrators, and assigns, the following described goods, chattels, and personal property, to-wit, one million nine hundred and sixty-two thousand (1,962,000) feet of pine saw-logs, together with two set of booms of 23 sticks each, with coupling and cross-chains complete, and one set with coupling chains, which are now lying in the Peshtigo river, at the harbor, and one million above Peshtigo village, in Marinette county, Wisconsin, and marked with the letter ‘V’ stamped on the end of log, and for side mark >, to have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, forever; and we do, for ourselves, our heirs, executors, and administrators, covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, to warrant and defend the sale of said goods, chattels, and personal property hereby made unto the said party of the second part, his executors, administrators, and assigns, against all and every person and persons whatsoever.
In witness whereof we have hereunto set our hands and seals this second day of December, A. D. 1881.
A. WEED & Co. [Seal.]
Signed, sealed, and delivered in the presence of J. H. SCOTT.”
“Memorandum of agreement made and entered into this second day of December, 1881, by and between Henry Collette, of one part, and A. Weed & Co., of the other part: Witnesseth, that the said A. Weed & Co. have this day sold to the said Collette, among other things, a quantity of saw-logs lying in the Peshtigo river, Marinette county, Wisconsin, estimated at 1,962,000 feet, with side mark > and end mark V, and the said Collette has agreed to pay therefor the sum of $7.75 per thousand feet, and in notes and cash has paid them a considerable portion thereof. But it is agreed by the said parties that the said Collette shall retain the sum of $1,205.50 until all of said logs have been rafted and scaled; and, if it shall then be found that said logs shall hold out in quantity to the said estimate, the said Collette shall pay the said A. Weed Co. the sum last aforesaid; but, if said logs shall not hold out, then, in that case, the said Collette shall retain of said sum at the rate of $7.75 per thousand feet shortage, and pay only the balance, if any. The scale shall be according to the rule and practice of the Peshtigo Co. in the purchase of logs. In case the shortage, if any, shall exceed in amount the sum of $1,205.50, as aforesaid, then, in that case, the said Collette shall have a claim against A. Weed & Co. for such excess.
+----------------------------+
¦J. H. SCOTT.¦H. COLLETTE. ¦
+------------+---------------¦
¦M. HUBBARD. ¦A. WEED & CO.” ¦
+----------------------------+
Upon the trial the evidence showed that the guaranty contract was not reduced to writing and signed by the parties until a day or two after the bill of sale was executed and delivered. It is upon this fact that the learned counsel for the appellants rely to defeat the plaintiff's recovering for the alleged shortage. This is the main point made by the appellants. They also insist that, if the respondent was entitled to recover at all for the shortage, he should have recovered only for the value of 375,921 feet. The case was referred to a referee to hear, try, and determine.
The referee found the following, among other facts:
“ Fourth. That as part of the same transaction with said contract of sale, and in consideration thereof, the plaintiff and the defendants entered into a written agreement, wherein and whereby the defendants guarantied that the said logs contained the number of feet above stated, which written agreement is on file herein, and is marked Exhibit 2.
Fifth. That the terms and conditions of said written contract of guaranty were agreed upon by and between the parties thereto at the time of the making of the said contract of sale, and in consideration thereof, although the same was not executed at said time, but within a few days thereafter.”
“ Eighth. That the logs mentioned in said bill of sale and contract did not amount to 1,962,000 feet, but to 1,166,620 feet, and no more, as duly determined by a scale of the same thereafter made, as contemplated by said agreement.
Ninth. That plaintiff has received said 1,166,620 feet of logs by virtue of said contract of sale as follows:
+-----------------------------------------------------------------------------+
¦(1) During the year 1882, scale at mill according to method ¦988,066 ¦
¦prescribed in contract, ¦ ¦
+-------------------------------------------------------------------+---------¦
¦(2) 146 logs lost in transit after delivery to tug-boat employed by¦24,333 ¦
¦plaintiff to tow same to his mill, estimated, ¦ ¦
+-------------------------------------------------------------------+---------¦
¦(3) Taken from river in 1883, Peshtigo Co.'s scale, ¦124,121 ¦
+-------------------------------------------------------------------+---------¦
¦(4) Taken from river in 1884, Peshtigo Co.'s scale, ¦10,100 ¦
+-------------------------------------------------------------------+---------¦
¦(5) Logs still in river, estimated, ¦20,000 ¦...To continue reading
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