Haydon v. Branson

• Decision Date: 28 December 1920
• Citation: Haydon v. Branson, 33 Idaho 368, 195 P. 545 (Idaho 1920)
• Parties: GUY HAYDON, Respondent, v. G. A. BRANSON and MILWAUKEE LUMBER COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

195 P. 545

33 Idaho 368

GUY HAYDON, Respondent, v. G. A. BRANSON and MILWAUKEE LUMBER COMPANY, a Corporation, Appellants

Supreme Court of Idaho

December 28, 1920

PLEADING-LOGGING CONTRACT-PROOF-CONFLICTING MEASUREMENT-EFFECT OF-VERDICT-MOTION FOR NEW TRIAL-SURPRISE-NEWLY DISCOVERED EVIDENCE.

1. In an action on contract for the sale of timber at a stipulated price per thousand feet, to recover the alleged balance of the purchase price, there being no agreement that a log scale of the timber should be final, binding or conclusive upon the parties, it is proper to receive in evidence any competent proof tending to show the actual amount of timber logged, and the question of fraud in the making of the log scale is not involved.

2. In such cases, evidence of a stump scale, made after the timber has been logged off, is competent as tending to show the actual amount of timber logged, and its weight is a question for the jury.

3. When there is substantial evidence to sustain a verdict, it will not be disturbed on appeal because of conflict.

4. Surprise as gronud for a new trial cannot be predicated upon the admission of proof which is competent, relevant and material to the issues raised by the pleadings.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.

Action on contract for the sale of timber. Judgment for plaintiff and order denying a new trial. Judgment and order affirmed.

Judgment and order affirmed. Costs awarded to respondent. Petition for rehearing denied.

E. N La Veine and Cannon & Ferris, for Appellant.

Where contract does not fix mode of measurement and there is no statute, the measurement should be made by the customary standard. (Kinney, Essentials of American Timber Law, secs 141, 142; 17 R. C. L. 1102; Destrehan v. Louisiana Co., 45 La. Ann. 920, 40 Am. St. 265, 13 So. 230; W. T Smith Lbr. Co. v. Jernigan, 185 Ala. 125, Ann. Cas. 1916C, 654, 64 So. 300.)

The scale made in the manner or by the person contemplated by the contract will be enforced as final unless fraud or substantial mistake be shown. (Bailey v. Blanchard, 62 Me. 168; Madunkeunk, D. & I. Co. v. Allen Co., 102 Me. 257, 66 A. 537; Manufacturers' Bank v. Hollingsworth, 106 Me. 326, 76 A. 880.)

In the absence of agreement as to measurement, the statute should control. (Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686.)

In the absence of clear and convincing proof of either fraud or mistake, respondent is bound by the written scale reports. (33 Cent. Dig., Logs and Logging, sec. 21; 12 Dec. Dig., Logs and Logging, sec. 10; Usrey Lumber Co. v. Huie-Hodge Co., 135 La. 511, 65 So. 627; Atwood v. Maine Co., 103 Me. 394, 69 A. 622; Nadeau v. Pingree, 92 Me. 196, 42 A. 353.)

Featherstone & Fox and James A. Wayne, for Respondent.

Mr. Lusk's stump scale was ample legal proof of such a discrepancy as would justify the inference of fraud or mistake. (Sullivan v. Ross' Estates, 124 Mich. 287, 82 N.W. 1071.)

Evidence of great discrepancy between the scale and other proof of timber actually logged should be admitted as proof of fraud, unfair dealing or mistake, and as being of sufficient probative value in itself to warrant the jury in disregarding the scale made by the persons agreed upon. (Gardner v. Wilbur, 75 Wis. 601, 44 N.W. 628; Ortman v. Green, 26 Mich. 209; Peterson v. Reichel, 143 Mich. 212, 106 N.W. 877; Ozan Lbr. Co. v. Haynes, 68 Ark. 185, 56 S.W. 1068; Robinson v. Ward, 141 Mich. 1, 104 N.W. 373; Eaton v. Sheehan, 224 Mass. 82, 112 N.E. 626.)

A large discrepancy in the amount is proof of fraud or mistake sufficient to take the case to the jury. (Breshanan v. Ross, 103 Mich. 483, 61 N.W. 793; Brooks v. Bellows, 179 Mich. 421, 146 N.W. 311; Hale v. Handy, 26 N.H. 206.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

In the fall of 1914, respondent, who was the owner of certain timber land on Big Creek, Shoshone county, Idaho, entered into an oral agreement with appellant Branson, under which the latter was to log all of the timber except white fir and hemlock from respondent's claim. Pursuant thereto, logging operations were conducted at two periods, first in the fall of 1914, and the second in the spring of 1915, at the end of which all of the merchantable timber had been logged off the claim and shipped. The contract, an interpretation of which is one of the chief sources of dispute in the case, and which shows the connection of appellant Milwaukee Lumber Company with the transaction involved herein, is best exemplified by a letter from the latter company to respondent, admitted in evidence as plaintiff's exhibit "B," which reads as follows:

"St. Maries, Idaho, April 9, 1915.

"Mr. Guy J. Haydon, "Kennewick, Washington.

"Dear Sir:

"Relative to your timber located on Big Creek which Mr. Branson contemplates logging, will say that if it is satisfactory with you for him to log this, that we will see that your stumpage is paid for, that is, that we will deduct the stumpage value before paying Mr. Branson, or stand responsible for the stumpage value of the timber that is cut and removed, on the basis of $ 2.00 per M ft for the White Pine, and $ 1.00 per M ft for the Cedar and other mixed timber as shown by log scale, and 1/2 cent per lineal foot on Cedar Poles, and pay you on the 10th of each month for all logs and poles cut and loaded the previous month. It is understood that there is to be no Hemlock or White Fir cut.

"Yours very truly,

"MILWAUKEE LUMBER COMPANY,

"By A. V. BRADRICK,

"Secretary.

"Accepted:

"By G. J. HAYDON."

This is an action upon the contract to recover an alleged balance of $ 5,327.34, it being alleged in the complaint that Branson received, cut and removed from the land a total of 5,357,000 ft., of which 3,374,910 ft. was white pine and 1,982,090 ft. was mixed cedar, fir and tamarack. The answer put in issue the allegations of the complaint, and alleged that the amount of timber cut by Branson and delivered to the lumber company was 1,339,400 ft. of white pine, 663,940 ft. of mixed cedar, and 12,366 linear feet of cedar poles, for which it was alleged the total amount due respondent had been paid.

The case was tried to a jury and a verdict was returned in favor of respondent for the balance prayed for in the complaint and judgment entered therefor. A motion for new trial was denied. This appeal is from the judgment and from the order overruling the motion for a new trial.

Numerous specifications of error have been assigned, but a separate discussion thereof will be unnecessary.

The evidence on behalf of respondent tended to show that by a stump scale of the timber logged off of the land, 3,374,910 ft. of white pine and 1,982,090 ft. of mixed cedar, fir and tamarack, had been cut and removed. The allegations of the complaint as to the amount of timber were sustained as alleged in the complaint. The evidence on behalf of appellants showed that according to their log scale 1,339,400 ft. of white pine and 663,940 ft. of mixed cedar, fir and tamarack, had been scaled out of the logs taken by appellants as merchantable timber; a discrepancy of 2,035,510 ft. in the white pine and 1,318,150 ft. in the mixed cedar, fir and tamarack. In other words, appellants' log scale accounts for only about one-third of the timber shown by respondent's stump scale to have been cut and removed. Thus a direct conflict in the evidence was presented to the jury to be settled by their verdict.

The assignment predicating error upon the ruling of the trial court denying their motion for a directed verdict, made at the close of all the evidence in the case, gives rise to appellants' main contention that "When parties have agreed upon...