Gillett v. Bowman

• Decision Date: 30 April 1880
• Citation: 43 Mich. 477,5 N.W. 661
• Court: Michigan Supreme Court
• Parties: GILLETT and another v. BOWMAN.

5 N.W. 661

43 Mich. 477

GILLETT and another v. BOWMAN.

Supreme Court of Michigan

April 30, 1880

Where a contract for the sale of timber provided that the same should be paid for according to measurement, held, that parol evidence was competent to show the understanding as to the making of the measurement. So long as a contractor is permitted to go on in the completion of a contract he is entitled to charge for services at contract rates. Merely notifying him that the parties will not pay, except according to some other standard, is nugatory.

Error to Alpena.

Turnbull & McDonald, for plaintiffs in error.

Holmes & Carpenter, for defendant in error.

COOLEY J.

Bowman as assignee of Henry Turner, brought suit against Gillett &amp Turnbull for the delivery of cedar timber under the following contract:

"It is hereby agreed by and between Henry Turner, of the first part, and J. Gillett & Co., of the second part, witnesseth The said first party agrees to deliver over the rail of vessels all the cedar timber now laying on the beach and in Devil river, being the same timber got out by said second party during the winter of 1876 and 1877, for the following prices: All the paving timber for seventy-five cents a cord; all fence posts for one cent apiece; said timber to be put over the rail of vessels as vessels may arrive to receive them; and to employ sufficient force for doing the same as may be necessary, so that vessels may not be unnecessarily delayed. In consideration of the first party faithfully performing his part of this contract the said second party agrees to pay the price above mentioned, as follows: On the returns of each load of paving timber shipped, to pay the said first party the amount due on such cargo in cash, and the posts to be paid for when shipped and counted.

"Dated May 7, 1877.

"HENRY TURNER,

"J. GILLETT & CO."

The chief controversy between the parties on the trial related to the measuring of the paving timber. This timber was shipped to Detroit and Chicago, and defendants claimed that the cargos were to be measured at the ports of destination, and that they were to pay according to the returns of the measurement; and they offered evidence that such was the understanding of the parties when the contract was entered into. The circuit judge excluded this evidence on the ground that it would vary the contract, and permitted the plaintiff to give evidence of the measurements and estimates of quantity made by himself in loading the vessels.

We think the excluded evidence was not objectionable on the ground stated. It did not tend to vary the contract; it did not affect any of its terms. The loading of timber was to be paid for according to quantity, and...