Day v. Gravel

• Decision Date: 03 May 1898
• Docket Number: 10,867 - (42)
• Parties: J. W. DAY and Others v. CHARLES GRAVEL
• Court: Minnesota Supreme Court

75 N.W. 1

72 Minn. 159

J. W. DAY and Others v. CHARLES GRAVEL

Nos. 10,867 - (42)

Supreme Court of Minnesota

May 3, 1898

Appeal by defendant from an order of the district court for Morrison county, Baxter, J., denying a motion for a new trial, after a verdict in favor of plaintiffs for $2,283.80. Reversed.

SYLLABUS

Sale of Logs -- Executory Contract -- Transfer of Title -- Damages.

A certain contract for the sale of logs construed; and held that it was executory, and that the property in the logs did not pass to the buyer when the contract was made.

Calhoun & Bennett and John H. Rhodes, for appellant.

The contract was executory. Thompson v. Libby, 35 Minn 443; Martin v. Hurlbut, 9 Minn. 132 (142); Gasper v. Heimbach, 53 Minn. 414; Nicholson v. Taylor, 31 Pa. St. 128; Malone v. Minnesota Stone Co., 36 Minn. 325; Elgee Cotton Cases, 22 Wall. 180; Note to Dunn v. Georgia, 3 L.R.A. 199; Note to 17 L.R.A. 176. The question is one wholly of intention which is ordinarily a matter of fact to be found by the jury. 3 L.R.A. 199, note; Engel v. Scott & H.L. Co., 60 Minn. 39; Northern P.L. & M. Co. v. Kerron, 5 Wash. 214; Kost v. Reilly, 62 Conn. 57.

Plaintiffs, having knowledge of the Bassett contract, would be liable for whatever loss defendant might suffer thereunder by reason of plaintiffs' failure to drive the logs. Hadley v. Baxendale, 19 Exch. 354; Note in 6 Eng. Rul. Cas. 617, 624; Cockburn v. Ashland Lumber Co., 54 Wis. 619; Griffin v. Colver, 16 N.Y. 489; U.S. v. Behan, 110 U.S. 338, 344; Cutting v. Grand Trunk Ry. Co., 13 Allen 381; Hurd v. Dunsmore, 63 N.H. 171; Buffalo B.W. Co. v. Phillips, 64 Wis. 338; Berkey & G.F. Co. v. Hascall, 123 Ind. 502; Abbott v. Hapgood, 150 Mass. 248; Blagen v. Thompson, 23 Ore. 239; Williston v. Mathews, 55 Minn. 422; Gasper v. Heimbach, supra; Crane v. Wilson, 105 Mich. 554.

Lindberg, Blanchard & Lindberg and Choate & Merrill, for respondents.

OPINION

START, C.J.

On March 23, 1894, the parties hereto entered into a contract whereby the plaintiffs agreed to drive to the Mississippi river all logs on the Platte river then belonging to the defendant, bearing certain marks, for a stipulated price per thousand feet, payable when the logs were in the Mississippi. The contract was silent as to the time within which the plaintiffs should perform the contract on their part. This action was brought to recover the contract price for driving the logs.

There was no controversy between the parties as to the contract, or the number of feet of logs actually driven by the plaintiffs, but the defendant set up certain counterclaims. The second one was to the effect that the defendant, prior to entering into the contract with the plaintiffs, had contracted to sell the logs in question to the J.B. Bassett Lumber Company, to be delivered in the Mississippi river during the season of 1894, to be paid for when there delivered; that the plaintiffs had knowledge of this contract when they entered into the driving contract with defendant, and that they could reasonably and easily have driven all of the logs into the Mississippi during the season of 1894, but that they neglected and refused so to do; that by reason thereof the defendant was obliged to, and did, sell the logs for $2,474 less than he would have received if the plaintiffs had driven them within a reasonable time, and that he thereby lost the use of the purchase price of the logs for one year; and, further, that by reason of such neglect and refusal the defendant was damaged $3,599.67. On the trial this counterclaim was amended by setting out in full the Bassett contract, which is designated as "Exhibit E." The material provisions of Exhibit E are in these words:

"For and in consideration of the payments hereinafter named, the said party of the first part hereby sells and agrees to deliver to said parties of the second part, into the Mississippi river at the mouth of the Platte river, as early in the spring of 1894 as the driving will permit, 2,200,000 feet, more or less, of pine logs; being all the logs cut by said first party and landed on the Platte river during the winter of 1893 and 4, and marked XA and XL, and stamped XL and XB. For and in consideration of the delivery of such logs as aforesaid, free of all incumbrance, the said parties of the second part agree to pay to the said party of the first part the sum of $6.50 per M for all logs so delivered, in accordance with the scale of the surveyor general as made on the landing, in the following manner: $2 per thousand feet on signing this contract (the receipt whereof is hereby acknowledged), $1.25 per thousand feet when all of abovementioned logs are delivered in the Mississippi river as above mentioned, $1 per thousand feet sixty days thereafter, and the balance December lst, after all logs have been so delivered." "It is hereby further agreed by said party of the first part that, when the second payment is made, he will have the logs specified in this contract transferred to the said parties of the second part, free of all incumbrance."

On the trial the defendant offered evidence tending to show that the logs might reasonably have been driven by the plaintiffs in the spring of 1894, and by July 1, and, according to the usual custom, should have been driven within that time, but that they were not driven until July, 1895. He also offered Exhibit E in evidence. The court received the evidence, against the plaintiffs' objections. The defendant then offered to show that he tendered the logs in 1895 to the J.B. Bassett Company under the contract, Exhibit E, that the company refused to take or pay for them, for the reason that they were not delivered in time; and, further, that the market value of the logs in 1895 was $1.50 per thousand less than it would have been if the logs had been driven within a reasonable time in 1894. The court, on the objection of the plaintiffs, rejected this and all other evidence as to this counterclaim, and withdrew it from the jury. The record does not disclose the reason for the trial court's decision, but it is here conceded by both parties that the basis of the trial court's action was that Exhibit E was an executed contract, and by it the title to the logs vested at once in the Bassett Company, and therefore the defendant could not have lost the sale of the logs, and could not have been damaged in the manner claimed. This is the only ground upon which the plaintiffs here seek to sustain the ruling of the trial court.

The precise question for our consideration is stated in the plaintiffs' brief thus:

"The question is, as above stated, did the title pass to Bassett? We claim that it did, and claim that the case of Rail v. Little Falls Lumber Co., 47 Minn. 422, is in point, and that there is no difference in principle between the two cases."

Therefore this is the only question with reference to this counterclaim which we shall consider.

Technical defects or omissions in the allegations of the amended counterclaim, if any there are, must be deemed waived, for they are not urged in the brief of counsel, or otherwise. We have, then, as the sole question on this appeal, was Exhibit E an executed contract, and did the title to the logs, by virtue thereof,...