Grand Forks Lumber Company v. McClure Logging Company

• Decision Date: 06 March 1908
• Docket Number: 15,477 - (160)
• Citation: 115 N.W. 406,103 Minn. 471
• Parties: GRAND FORKS LUMBER COMPANY v. McCLURE LOGGING COMPANY
• Court: Minnesota Supreme Court

115 N.W. 406

103 Minn. 471

GRAND FORKS LUMBER COMPANY v. McCLURE LOGGING COMPANY

Nos. 15,477 - (160)

Supreme Court of Minnesota

March 6, 1908

Action in the district court for Washington county to recover $144,805.60 as damages for breach of contract. The case was tried before Stolberg, J., and a jury which rendered a verdict in favor of plaintiff for $78,405.18. From an order denying defendant's motion for a new trial, it appealed. Affirmed.

SYLLABUS

Statute of Frauds -- Breach of Contract.

The contract involved in this case provided for the cutting and delivery to respondents of all the merchantable pine timber standing on certain lands, not less than nine million feet nor more than twelve million feet in any one season, to be paid for in part when the logs were banked, and as driven and delivered. Held:

1. Although the time was not limited within which the contract should be completed, it appears from its face that it was not to be executed within one year from its date, and hence was within the statute of frauds, and could not be varied by parol evidence.

2. According to the evidence, appellant was not justified in repudiating its contract to deliver all of the logs cut during the logging season of 1904-1905, upon the ground that respondent was in default in making payments.

3. It conclusively appears from the evidence that appellant repudiated the contract on March 30, 1905, and violated its agreements thereunder by selling and delivering to other parties the greater part of the logs which it had cut during the logging season then just closed; that such conduct constituted a complete breach of the contract, and respondent upon discovery thereof was entitled to declare the contract broken as of the date of discovery; and its right of action for damages for such breach, with interest, then became complete.

J. N Searles and J. C. Nethaway, for appellant.

Clapp & McCartney and Manwaring & Sullivan, for respondent.

OPINION

LEWIS J.

March 24, 1899, appellant entered into a contract in writing with Robert H. McCoy, whereby it agreed to cut and remove from certain described lands all the merchantable pine timber, and to haul, bank, and drive the logs to Crookston, Minnesota, upon the Red Lake river. The contract recited that seven million feet had already been cut and banked during the logging season of 1898-1899, and was to be driven and delivered at Crookston during the driving season of 1899. "Hereafter said party of the first part agrees to cut, haul, bank, drive, and deliver not less than nine million (9,000,000) feet, board measure, of such logs. And if the said party of the second part, on or before the first day of August in any year (commencing with the first day of August, 1899), notify said party of the first part that he will require it to haul, cut, bank, drive, and deliver more than nine million feet of such logs during the next succeeding season, specifying the excess so required, the said party of the first part hereby agrees to cut, haul, drive, and deliver such quantities of said logs as may be required by said party of the second part, not, however, exceeding twelve million feet in any one year." The contract further provided that appellant would use all reasonable diligence to deliver all the logs cut in any one logging season as soon as practicable after the commencement of the first driving season thereafter. Mr. McCoy agreed to purchase all of the pine timber fit for merchantable saw logs standing on the land described "during the continuance of this contract, and to pay for such timber, when cut into saw logs and driven and delivered to him at Crookston aforesaid, eight and 50/100 dollars ($8.50) per thousand feet, board measure, according to the scale thereof to be made as hereinafter provided, payments to be made as follows." Then follow provisions for the payment of $2.50 per thousand feet, board measure, for all logs cut in the year 1899, as soon as they were cut and banked, and one dollar per thousand feet for all logs banked prior to the first day of January in any year, commencing with the first day of January, 1900, and on the first day of February in each year, commencing with the first day of February, 1900, and one dollar per thousand feet for all logs banked during the preceding January, and, further, when the camps break up in the spring, Mr. McCoy should pay an amount which, together with the amounts previously paid in any one season, should equal $2.50 per thousand feet for all logs cut and banked during the season immediately preceding. There was another provision that he was to pay a certain amount each year after the logs had been delivered at Crookston. The contract further recites:

"It is understood that the said party of the second part purchases said logs for the purpose of manufacturing the same at the mill to be erected by him at or near East Grand Forks, upon said Red Lake river, below Crookston; and it is mutually agreed that if said party of the second part shall be unable, after exercising all proper diligence, to get substantially the entire cut of said logs in any one season from the point where the same may be delivered to him by the party of the first part pursuant hereto to his said mill, the last four payments to be made for such logs which he may be so unable to get in any one season shall be deferred until he shall be able, exercising all proper diligence, to get such logs to his mill, and thereafter the payments so deferred shall be made in three equal payments as follows: One at the time the logs are substantially delivered at his mill, one in sixty days, and one in ninety days thereafter."

McCoy assigned the contract to respondent, and this action was brought to recover damages alleged to have accrued by reason of the fact that during the year 1905 appellant cut and sold a large quantity of timber to other parties and entirely failed to deliver the same to respondent in accordance with the terms of the contract. Respondent recovered a verdict.

1. One of the principal questions presented on the appeal is that the contract was not within the statute of frauds, and consequently parol evidence was admissible to prove that its terms had been modified. It was alleged in the answer that the original contract was modified, so as to provide that appellant was relieved from the duty of delivering to respondent that portion of the timber located east of a certain ridge, but that the terms of the contract should remain in force as to all of the timber located west of the ridge, with certain modifications in the payments. Appellant also claimed that the contract was modified so that respondent agreed to receive and pay for twelve million, instead of nine million, feet to be cut and delivered during the winter of 1903-1904. All parol evidence offered on the part of appellant tending to change the terms of the contract was rejected by the trial court upon the ground that it tended to change the terms of the contract which was within the statute of frauds.

As we understand the argument of appellant, it is that no time being stated in the contract within which the contract must be performed, it might be performed within one year, and hence was not within the statute of frauds. It is unnecessary to follow appellant through the various propositions bearing upon this subject. To our minds there is no ground for argument. It is perfectly plain from the face of the contract, when considered as a whole with reference to the subject-matter, that it was a contract not intended to be performed within one year from its date. According to the evidence the lands described in the schedules attached to the contract contained merchantable pine timber amounting to upwards of seventy seven million feet. The contract was executed on March 24, 1899. If the contract was to be performed within one year from that date, all of the logs would have to be cut and delivered prior to March 24, 1900. The time for driving logs is in the spring and summer seasons, and the winter season is for cutting and banking logs. This appears from the contract itself. The contract recites that seven million feet had already been cut and banked during the logging season just closed, to be delivered as a part of the contract as soon as practicable after the commencement of the driving season in the year 1899. That several logging and driving seasons were contemplated is evident from the frequent reference throughout the contract to the manner and time of payment, based upon the cut and delivery of the logs for each season. It also appears from the amount to be cut and delivered in any one season. The minimum of nine million feet and the maximum of twelve million feet in any one year were not inserted for the exclusive benefit of appellant. Those provisions were evidently inserted for the benefit of both parties. Appellant was compelled to deliver each year at least nine million feet, and respondent was compelled to receive and pay...