Goodrich v. Hubbard

• Decision Date: 20 June 1883
• Court: Michigan Supreme Court
• Parties: GOODRICH v. HUBBARD and others.

16 N.W. 232

51 Mich. 62

GOODRICH v. HUBBARD and others.

Supreme Court of Michigan

June 20, 1883

Plaintiff entered into a contract to haul logs for defendant at a certain rate, the hauling to be done during the winter of 1879 and 1880, if the weather was favorable; and if not, the balance of the logs to be hauled the following winter. Held that, construing this contract in the light of surrounding circumstances; the lack of snow and frost during the winter of 1879 and 1880 was a good excuse for not hauling all the logs that winter, and that plaintiff was entitled to complete the hauling during the winter of 1880 and 1881.

The measure of damages that plaintiff would be entitled to for the refusal of defendant to allow him to complete the hauling of the logs, would be the profit that he could have made under his contract if he had completed the hauling.

Error to Lapeer.

Geer & Williams, for plaintiff.

John Atkinson and J.B. Moore, for defendants and appellants.

SHERWOOD, J.

This is an action of assumpsit to recover damages of defendant for an alleged breach of contract, in preventing plaintiffs from hauling and delivering a quantity of pine saw-logs. The contract is as follows:

"This contract, made this twenty-fifth day of October, A.D.1879 between Garry Goodrich, of Arcadia, Lapeer county Michigan, of the first part, and Bela Hubbard and John E King, of Detroit, Michigan, of the second part, witnesseth That the party of the first part agrees to haul all the pine saw-logs that party of the second part may cut on section twenty-one, (21,) in said town of Arcadia, to Long lake, in said section eighteen, (18,) and nineteen, (19,) in said town, and deliver them in the south boom of Henry Stephens, and to do it in such a manner as will be satisfactory to said Henry Stephens, for the sum of one dollar per one thousand feet, and to put on good and sufficient force of men and teams to haul and deliver all of said logs this winter next ensuing, if weather will permit. And the said party of the second part agrees to skid said logs in a workmanlike manner, and to make the roads to the same, and to skid said logs as well as said Stephens skids his logs, on section twenty, (20,) and to make the roads as good as the lumber roads of said Stephens, in section twenty, (20,) and to furnish the logs as fast as first party can haul them, and to pay to party of the first part one dollar per thousand feet for the logs delivered on Long lake, as above specified. Payments shall be made as fast as 500,000 feet are so delivered, and according to the scale bill of said logs as sold by parties of second part to said Henry Stephens. The place and facility for delivering said logs on Long lake to be furnished by parties of second part shall be as good as for delivering the logs of said Henry Stephens from section twenty, (20;) all logs hauled to be paid for in full in the spring. If weather unfavorable, and all the logs cannot be hauled the first winter, this contract shall be continued to another winter, on same terms and conditions. No logs to be hauled over 24 feet long.

[Signed] "GARRY GOODRICH.

"HUBBARD & KING.

"By G.W. MCELHENNEY."

The declaration states a prior contract, concerning the cutting, hauling, and delivering by plaintiff of other logs, as in force between the parties at the date of the above-recited contract, which was canceled by the parties, as appears, at or about the time of entering into the above contract, and there is no claim of damages on account of it, and needs no further consideration. The case, upon stipulation of the parties, was ordered referred to James McNamara, as referee, and his report was confirmed, and judgment rendered for plaintiff. The case is here upon errors assigned, on the confirmation by the circuit court of the referee's finding of law. No exceptions were taken to rulings on the trial before the referee, but exceptions were filed in the court below to the referee's report, which were overruled by the court; and accepting his findings of fact as conclusive, we can only consider the question upon the exceptions to his conclusions of law, and the decision of the circuit court upon the exceptions. The fact of the making of the contract which is the subject of this suit, is not questioned; and the question in issue upon the pleadings, and the defendant's notice, under his plea of the general issue, is whether the defendants are liable in damages for a breach of it. The referee's findings of fact which are material, are, substantially stated, as follows:

The winter of 1879 and 1880 was, for the purpose of hauling logs on snow and ice, most unfavorable. The first fall of snow, sufficient for any logs to be moved upon, occurred about or a little before Christmas, and only then continued a few days,--about eight days,--and the frost was of very little account. Another little flurry of snow occurred in February of that winter, when, it was in evidence, some lumbermen put in five days, or rather nights, at that time in hauling. The rest of the winter there was neither frost nor snow. The quantity of logs to be hauled by the plaintiff was 3,618,000 feet, to move which to Long lake, calculating upon an ordinary season, which would be about six weeks, of frost and snow, required him to provide a force of about 30 teams and take advantage of the first sufficient fall of snow, and which this winter occurred, as stated, about Christmas time. Plaintiff had equipments for 30 teams; had arranged for 30 teams, including his own, to haul logs, to come as soon as the roads were in condition to haul logs upon the snow. The plaintiff came on to do the hauling two or three days after this first snow had fallen, in the latter part of December, with six teams, and hauled with these six teams as long as it was practicable to haul with sleighs. The road was built by defendants over a line selected by plaintiff, and for about 70 rods of the distance ran through a swamp. The balance of the way, a mile and a quarter and upwards, was over hard land, and it connected with the lumber road of Henry Stephens running from thence to Long lake; and this road was not graded by defendants until after the first fall of snow, or about the time plaintiff came on to do the hauling.

The work of the plaintiff was in the nature of breaking roads preparatory to hauling, and done in the usual mode of practical lumbermen, and the number of teams he employed was as many as would ordinarily be employed in the breaking of roads to perform a similar job. Only two teams of the number plaintiff had arranged for came at this time, and the roads were so broken up that these teams returned without hauling any logs. The plaintiff at this time hauled in all about 67,717 feet, and spent in doing it not to exceed five days. In consequence of the condition of the weather, there being but little frost...