Hewitt v. John Week Lumber Co.

• Decision Date: 14 October 1890
• Citation: 46 N.W. 822,77 Wis. 548
• Parties: HEWITT v. JOHN WEEK LUMBER CO.
• Court: Wisconsin Supreme Court

77 Wis. 548

46 N.W. 822

HEWITT

v.JOHN WEEK LUMBER CO.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, Portage county; CHARLES M. WEBB, Judge.

Action by Henry Hewitt, Jr., as surviving partner, against the John Week Lumber Company, for the purchase price of logs. Defendants set up a counter-claim for damages resulting from plaintiff's breach of a contract to have sawed at defendant's mill a stated quantity of logs, for a specified compensation. There was a judgment in plaintiff's favor, and defendant appeals.Cate, Jones & Sanborn, for appellant.

Miller & McCormick and John Barnes, for respondent.

TAYLOR, J.

This action is brought here by the appellant, without settling any bill of exceptions, and the record returned contains only the pleadings, the special verdict of the jury, and the judgment of the court upon such verdict. The case is brought here by the defendant, upon two questions: First. It is claimed that the defendant should have been allowed interest upon the amount of damages recovered by it from the time of the breach of the contract by the plaintiff, whereas the court only allowed interest from the day of his filing his counter-claim. Second. It is claimed that the court erred in not allowing, as a part of its damages, the value of the slabs from the logs of the plaintiff which the plaintiff should have furnished under his contract, and which the defendant had agreed to saw for him. The rights of the appellant to be adjudicated upon this appeal arise upon the counterclaim of the defendant, set up in its answer, in which it claims that the plaintiff had failed on his part to perform the contract set up in such counter-claim. The following is a copy of the contract as set up in the appellant's counter-claim: “Memoranda of agreement made and concluded this 10th day of September, A. D. 1886, by and between the John Week Lumber Company, of the city of Stevens Point, Wisconsin, party of the first part, and Hewitt & Daniels, of Hutchinson, Wis., parties of the second part: Witnesseth, that the said party of the first part, for the consideration hereinafter mentioned, agree to manufacture into lumber or shingles, in a good and workman-like manner, certain lot of pine saw-logs, now in the Stevens Point Boom Company's boom, and owned by said second parties, consisting of eight hundred thousand feet, (800,000,) more or less, marked on the end H. D., and on the side H.; also one hundred and fifty thousand feet, (150,000,) more or less, marked on the end D. D., and on the side X. Said logs are to be manufactured into lumber or shingles as said second party or their agent may direct, and as fast as they are delivered into their mill-boom and piled in their lumber-yard in such manner as such second parties may direct, and shall be assorted, if so desired, into three grades, as near as may be,--into select and better, common, and culls. Said logs or timber that may be manufactured into shingles shall be assorted and packed into three grades, known as ‘star A star,’ ‘shaded A,’ and ‘number one,’ or ‘culls,’ in the usual and customary manner, and piled in said first parties' lumber-yard. All lumber and shingles to be covered or roofed with second parties' lumber. Said first parties agree to manufacture said logs into lumber on their band and circular saw-mills, each mill to be run to its fullest capacity as near as may be. It is mutually agreed and expressly understood that all the said lumber shall be manufactured into thickness of one and one-fourth, (1 1/4,) one and one-half, (1 1/2,) and two inch, (2,) or thicker, as second parties may direct. Said second parties agree to deliver all of said logs into said first parties' mill-boom during the sawing season of 1886, in lots of two hundred thousand (200,000) feet, or more, at each delivery. Said second parties further agree to pay said first parties for the manufacturing, assorting, piling, and covering of the lumber, in the manner aforesaid, the sum of two dollars and seventy-five cents ($2.75) for each and every thousand feet so manufactured, and for the manufacturing and assorting, packing, piling, and covering of the shingles, in the manner aforesaid, the sum of eighty-five (85) cents per thousand for star A star; sixty-five cents (65) per thousand for shaded A; and forty cents (40) per thousand for number ones, or culls. Payments to be made as follows: One-half of the above agreed price at the end of each month, as fast as said lumber and shingles are put in the pile, and the balance on the 15th day of December, 1886. It is mutually agreed that said lumber shall be estimated in the pile by A. G. Hamacker, of Stevens Point, Wis., whose estimates shall be final in determining the number of thousand feet of lumber and the number of thousand of shingles, one-half of the expense of such estimate to be paid by each of the parties hereto. In witness whereof we have hereunto set our hands and seals, this 29th day of September, A. D. 1886. J. T. DANIELS. [Seal.] HENRY HEWITT, JR. [Seal.] THE JOHN WEEK LUMBER Co. In presence of J. L. TRECAEGER, as to H. H., JR. CHAS. E. WINSLOW. Attest, A. R. WEEK, Secretary. N. A. WEEK, President. [Seal.]”

The defendant, in his answer, set up a counter-claim under this contract, and alleges a breach of the same on the part of the plaintiff by refusal to furnish and deliver 550,000 feet of logs agreed to be furnished by the plaintiff under such contract, and alleges that the actual cost to the defendant to manufacture such logs into lumber, as required by the contract, would not exceed 75 cents per thousand feet; and then alleges that it has been damaged, by reason of such refusal on the part of the plaintiff to furnish such logs, in the sum of $1,000, with interest thereon from the 15th of December, 1886, and demands judgment for that sum. Upon this counter-claim the jury found a special verdict as follows: “Eleventh question: Did the defendant, in 1886, agree, in writing, with said Daniels & Hewitt to manufacture into lumber 950,000 feet of saw-logs belonging to said Daniels & Hewitt, and did it manufacture into lumber any part of said logs? Answer. Yes. Twelfth question: What amount, if any, is due and unpaid from plaintiff to defendant for manufacturing such logs into lumber and shingles? A. $811.70. Thirteenth question: Was the lumber so manufactured by defendant sawed and piled in a good and workman-like manner? A. Yes. Fourteenth question: If you say ‘No’ in answer to the last question, then was the plaintiff damaged thereby, and, if so, how much? A. * * * Fifteenth question: Did the said Daniels & Hewitt fail to deliver any part of said logs contracted to be sawed, as before stated, into the mill-boom of defendant's mill? A. Yes. Sixteenth question: How many feet of logs did they fail to deliver? A. 525 M. Seventeenth question: What amount would it have cost the defendant, per thousand feet, to saw and pile the logs not delivered in the manner provided in the aforesaid written agreement, without taking into account the value of the slabs? A. $1.10. Eighteenth question: What was the value per thousand feet of logs, to defendant, of the slabs obtained by it in the manufacture of logs into lumber in the fall of 1886? A. Forty-one cents. Nineteenth question: Was there a general custom in the saw-mills on the Wisconsin river, on September 29, 1886, and for many years...