Crane v. Williamson

• Decision Date: 14 June 1901
• Citation: 63 S.W. 610,111 Ky. 271
• Parties: CRANE et al. v. WILLIAMSON et al. [1]) Frankfort bar, and formerly state reporter.
• Court: Kentucky Court of Appeals

63 S.W. 610

111 Ky. 271

CRANE et al.

v.

WILLIAMSON et al. ^[1]) Frankfort bar, and formerly state reporter.

Court of Appeals of Kentucky.

June 14, 1901^[2]

Appeal from circuit court, Boyd county.

"To be officially reported."

Action by Ben Williamson & Co. against C. Crane & Co. and others on an accepted order. Judgment for plaintiffs, and defendants C Crane & Co. appeal. Reversed.

Chas W. Baker and R. C. Burns, for appellants.

Hager &amp Stewart, for appellees.

HOBSON J.

Appellants C. Crane & Co., are lumbermen doing business at Cincinnati, Ohio. They made contracts with R. H. Prichard and J. P. Brubaker, doing business as a firm under the name of Prichard & Brubaker, for the purchase of a large number of logs on Twelve Pole and Guyandotte rivers and their tributaries, in West Virginia. Part of the logs had been delivered prior to September 1, 1896. Appellees, Ben M. Williamson and W. J. Williamson, as partners under the firm name of Ben Williamson & Co., are merchants at Catlettsburg, where Prichard & Brubaker also resided, and had a debt against them, for supplies furnished them, amounting to $5,731.39. About September 1, 1896, appellees, Williamson & Co., presented to appellants, Crane & Co., for acceptance, the following order drawn on appellants by Prichard & Brubaker:

"C. Crane & Co., Cincinnati, Ohio: Pay to the order of Ben Williamson & Co., out of the proceeds of timber delivered hereafter from waters of Twelve Pole and Guyandotte rivers, West Virginia, the East Lynn and R. A. Lewis jobs, under our contract with you, the sum of $5,731.39; and this shall stand as your receipt for all payments made. R. H.

Prichard. Prichard & Brubaker. Aug. 31, 1896."

Previous to the sending of this order here had been an interview between appellants and Williamson & Co. in which it had been arranged that an order should be drawn, and would be accepted. Crane & Co. declined to accept the order on the ground that it was not worded just as they wanted it worded, and did not conform to their understanding of the arrangement. Later they wrote out the following order, which was duly signed by Prichard & Brubaker and accepted by them:

"Catlettsburg, Boyd county, Kentucky. Messrs. C. Crane & Co., Cincinnati, Ohio--Gentlemen: Pay to the order of Ben Williamson & Co., out of the first money due us on the Twelve Pole and Guyandotte rivers, West Virginia, the East Lynn and R. A. Lewis jobs, under our contract with you, which means, after deducting all moneys you have paid on said timber, and any money that you may have to advance in order to get same out and rafter ready for delivery as per our contract with you, the sum of $5,731.39; and this shall stand as your receipt for all payments so made. R. H. Prichard. Prichard & Brubaker. September 8, 1896.

"Accepted. C. Crane & Co."

In the contracts between Crane & Co. and Prichard & Brubaker it was stipulated that Crane & Co. were to make advances to Prichard & Brubaker on the logs, to enable them to get the timber out. At the time the order was accepted, Prichard & Brubaker had delivered to Crane & Co. logs to the amount of about $37,000, and had been advanced on the contracts about $75,000. After the order was given, Prichard & Brubaker continued to deliver logs, and Crane & Co. continued to make advances from time to time, until Prichard & Brubaker failed, in the spring of the year 1897. After the failure of Prichard & Brubaker, a settlement was made between them and Crane & Co., on which it turned out that Crane & Co. had advanced in all $162,570.18, and that, after crediting Prichard & Brubaker by all the logs delivered, there was a balance due from them to Crane & Co. of $3,392.19. This amount was reduced about one-third by some logs afterwards delivered. Appellees, Williamson & Co., then filed this action against Crane & Co., on the order which they had accepted, to recover the amount of the order, on the ground that, of the total sum advanced by Crane & Co. after September 8, 1896, $11,930.33 was not used by Prichard & Brubaker in getting out the timber, but was applied by them to the payment of other debts, and that to this extent, or more, Crane & Co. should not have paid the money to Prichard & Brubaker, but retained it for the payment of the order. The court below held Crane & Co. responsible, and they have appealed.

It is insisted for appellants that the evidence offered by them as to the verbal arrangement under which the order was drawn should have been admitted. This evidence was properly excluded by the court below. When parties have deliberately put their contract in writing, the writing supersedes the parol negotiations, and their rights must be determined from the written contract itself, in the absence of fraud or mistake. Moore v. Parker, 15 Ky. Law Rep. 125; Worland v. Secrest (Ky.) 51 S.W. 445; Blakistone v. Bank, 87 Md. 302, 39 A. 855; Daniel, Neg. Inst. § 517. But in all contracts the thing to be arrived at by the court in fixing the liability of the parties is the actual intention of the instrument. While we cannot consider the parol negotiations between the parties previous to the execution of the written contract, in order to ascertain its proper meaning, we may consider their situation and surroundings to arrive at the real intention of the instrument, where its terms are indefinite or uncertain. Bish. Cont. § 372. The proof shows that Prichard & Brubaker had to pay the landowners for the timber, the workmen for cutting it, the haulers for transporting it, and still another set of men for rafting and floating it to the mouth of the stream. This was all to be done in West Virginia, in the mountains, and these men were all to be paid promptly. To carry on this business, Prichard & Brubaker maintained several stores to furnish supplies to their men. To keep a stock in these stores, they had to maintain their credit with the merchants from whom they bought, and certain banks. Crane & Co. had nothing to do with the operations in West Virginia. The proof also shows that in contracts of this character there is heavy expense in getting out the first of the timber, on account of the construction of tramways, sluice dams, and the like, and that the profit on the contract is largely on the latter part of it. Prichard & Brubaker were men of high character. They were heavily involved when the contracts were made, and when the order was given, and could not carry out their contract unless maintained by Crane & Co. Appellees were well aware of the situation of the parties and the way the business was done by Prichard & Brubaker. Mr. Brubaker, of the firm of Prichard & Brubaker, was the son-in-law of appellee Ben Williamson, and the brother-in-law of appellee W. J. Williamson. All the money which Crane & Co. advanced to Prichard & Brubaker was advanced on their positive assurances that it was absolutely necessary to enable them to get out the timber, and to pay certain charges which were then named. Crane & Co. were reluctant to furnish much of the money, and only furnished it because they were made to believe that, unless it was furnished, suits would be brought in West Virginia, and a greater loss would fall upon them. The money which was furnished was not in all cases applied to the purposes for which it was obtained, but was placed in bank, to the credit of Prichard & Brubaker, and about $11,000 of it was paid out by them in small amounts, from time to time, on debts of Prichard & Brubaker to banks and other people. The money that was furnished after the order was accepted was paid, just as that had been which had been advanced before. In January, 1897, Prichard, who was the business man of the firm of Prichard & Brubaker, and stayed in the mountains, running the business, failed in health; and there was then at his bedside a meeting held, in which the managing agent of Crane & Co. was present, for the purpose of determining what should be done. At this meeting it was shown to Crane & Co. that Prichard & Brubaker would fail and be unable to carry out their contract unless Crane & Co. carried them along. To prevent a greater loss, Crane & Co. made...