Hoffman v. King

• Decision Date: 10 January 1888
• Citation: 70 Wis. 372,36 N.W. 25
• Parties: HOFFMAN v. KING.
• Court: Wisconsin Supreme Court

70 Wis. 372

36 N.W. 25

HOFFMAN

v.KING.

Supreme Court of Wisconsin.

January 10, 1888.

Appeal from circuit court, Jackson county; A. W. NEWMAN, Judge.

December 27, 1881, the plaintiff, Fred J. Hoffman, and the defendant, William T. King, entered into a written contract, wherein and whereby, in effect, Hoffman agreed to sell and deliver to King, at what was known as “Dick Noble's Mill,” in Jackson county, Wisconsin, 1,000,000 or more feet of merchantable pine lumber, the same to be cut and sawed into lengths and sizes or dimensions, as directed from time to time by King, “to be delivered on skids at end of mill, assorted in lengths, but not in size,” etc., “as fast as same” could “be sawed each day by” said mill, from the date thereof until March 15, 1882, and as much later as would permit of practically hauling the same from said mill on sleighing or frozen ground or ice, that winter; and, in consideration thereof, King agreed to pay “for said lumber so delivered,” three and a half dollars per thousand feet on all so delivered “every thirty days,” and the balance thereof, to-wit, three and a quarter dollars per thousand feet when the contract was completed; and “the title to said lumber” was “to be and remain in said” Hoffman, “as his interest” might “appear, as per” said “contract, until the purchase price” therein stated should “be fully paid, or other security satisfactory to him given.” Said King “also agreeing to keep said lumber from accumulating on said skids in mill-yard, either by hauling it away or piling at least twenty-four feet from mill track,” said Hoffman thereby “agreeing to furnish the ground necessary, without additional charge, for the purpose of piling said lumber, until such time as it” might “be practically hauled away to” Meadow Valley or Mill Grove, in Juneau county. This action was commenced April 18, 1882, and it was, in effect, alleged in the complaint, that in pursuance of said contract, and prior to March, 1882, Hoffman had put into said mill about 900,000 feet of pine saw logs, and that prior to March 6, 1882, about 600,000 feet thereof had been sawed at said mill, of which 359,421 feet had been actually delivered to King; that on or about March 6, 1882, King utterly refused to receive any more lumber and timber on said contract, and for some time prior thereto had refused and neglected to keep said lumber from accumulating on the skids in the mill-yard, although often requested to remove the same; that by reason thereof, there had, on that day, accumulated on said skids about 200,000 feet, and consequently said mill was compelled to and did stop sawing for a number of days; that Hoffman was compelled to and did remove the same from said skids, thereby delaying and hindering the plaintiff from hauling logs to the mill on the contract; that by reason of such refusals, Hoffman neglected to put more logs into the mill; that King had also failed and neglected to pay for the lumber so received by him within 30 days from the date of such reception, and failed to keep and perform any of the conditions of the contract; that King had only paid or settled for 183,437 feet of the lumber so actually received by him, and that the time for paying or settling for the balance had long since expired; that King refused to pay, settle, or return to Hoffman the 175,984 feet so not paid or settled for, though often requested so to do; that said last-named amount of lumber was then at Meadow Valley, and that Hoffman was still the owner of the same, and lawfully entitled to the possession thereof; and that the same was of the value of $1,200; and that King wrongfully and unjustly withheld and detained the possession thereof from Hoffman, to his damage in that amount; wherefor he demanded judgment against King for the recovery of said last-named lumber, or $1,187.89, the value thereof, in case a delivery thereof could not be had, with $300 damages, as well as costs. The answer admitted the contract, the receiving thereon of 359,421 feet of such lumber, and alleged, in effect, that the defendant had paid thereon $1,267.25; that he had always been ready, able, and willing to carry out and perform each and every part and condition of the contract for him to be carried out and performed; but that March 6, 1882, Hoffman utterly refused to deliver to him any more lumber under the contract, and since had continued to so refuse, and failed to perform or comply; that March 15, 1882, the defendant tendered to Hoffman the balance due him under the contract, and then and there tendered and offered to him full and complete performance thereof, and full payment for the balance of lumber still due him thereon, and demanded the same, but that Hoffman refused to accept such payment, or deliver the balance, for the reason that the price had increased three dollars per thousand since the making of the contract, and alleged ownership of the property described in the complaint, and the release of the same by his giving the requisite undertaking, with a general denial of each and every allegation not admitted. At the close of the trial the jury returned a verdict to the effect that the defendant was the owner, and entitled to the possession of the lumber described in the complaint. From the judgment entered thereon, the plaintiff brings this appeal.

C. F. Ainsworth and Pinney & Sanborn, for appellant.

L. P. Powers and Gardner & Gaynor, for appellee.

CASSODAY, J.

The mill at which the lumber was sawed was situated on Hog island, so called. It had the capacity of manufacturing about 12,000 feet of lumber per day. To aid in handling the lumber thus manufactured, there was a car track constructed, extending out from the mill some four or five hundred feet, and elevated from two to seven feet above the ground. Along one side of this track, and perpendicular to it, skids were placed, upon which the lumber contracted for was to be piled or delivered by the plaintiff when removed from the car. Such delivery was to be made as fast as the lumber could be sawed by the mill from the date of the contract until March 15, 1882, and as much later as would admit of practical hauling to the railroad station on sleighing, frozen ground, or ice. The railroad stations at Meadow Valley and Mill Grove, mentioned in the contract, were each some six or seven miles distant from the mill in question. From the mill to either of those stations there were none other than corduroy roads over a marsh or marshes, available only when frozen hard. It was over such road or roads that the defendant hauled from the mill to such stations, or one of them, the 359,421 feet of the lumber mentioned. It is conceded that upon that lumber the defendant had paid the plaintiff the first installment of $3.50 per thousand feet, amounting to $1,267.25, and that the other installment of $3.25 per thousand feet would not, by the terms of the contract, become due thereon until after the delivery on the skids by the plaintiff of the entire million feet of lumber called for by the contract. It appears from the evidence that whenever there was a thaw, so as to make it impracticable to draw the lumber to the railroad station over the corduroy roads, the defendant allowed it to accumulate, more or less, on the skids along the track running out from the mill. Thus, it is said that some time in January, or the fore part of February, 1882, and when there was only about 50,000 feet upon the skids, it was so accumulated at certain points along the track as to make it necessary on the part of the plaintiff to stop the mill for a few hours, and pile the lumber back further from the track; and that the same was substantially repeated a week or two afterwards. No rescission of the contract, however, was attempted or is claimed by reason of either of these accumulations. But about March 6, 1882, such lumber was again allowed to accumulate upon such skids, until it reached about 200,000 feet, when, it is claimed, the mill was necessarily stopped for a few days, and the same was piled back further from the track, by the procurement of the plaintiff, at an expense of forty or fifty dollars. We find in the bill of exceptions considerable evidence, on the part of the defense, to the effect that on the day the mill shut down, to-wit, Monday morning, March 6, 1882, some half a dozen men went to the mill, on the part of the defendant, to remove the lumber back from the skids, but that the plaintiff refused to allow them to do so, and insisted that the lumber was his, and that the defendant should have no more of it; and that there was then among the lumber so accumulated on the skids from thirty to forty thousand feet of culls not included in the contract. The plaintiff's evidence is to the effect that there were no culls among such accumulations; but he concedes, in effect, that after he had so removed the lumber back into the yard, and before the commencement of this action, the defendant came to him and offered to pay him up if he would let him have the lumber upon the contract, which he declined to do. The defendant never received any portion of this 200,000 feet, and, of course, the lumber here replevied includes no part of it. On the contrary, it stands confessed by the plaintiff, that he forbade the defendant from removing any portion of it unless he would first pay the expense and damage consequent upon such failure to remove; whereas the defendant claims that he was prevented from removing such lumber by the plaintiff himself, and besides, was excused from such removal, under the decision on the former appeal, (58 Wis. 314, 17 N. W. Rep. 136,) by reason of the mixture with it of inferior lumber by the plaintiff. The defendant never received any of the lumber contracted for, except the 359,421 feet mentioned, which the defendant had hauled from the mill to the railroad station. It is conceded that a very large portion of the lumber thus contracted for was never delivered...