Howell v. Johnson

• Decision Date: 15 April 1901
• Parties: HOWELL v. JOHNSON.
• Court: Oregon Supreme Court

64 P. 659

38 Or. 571

HOWELL v. JOHNSON.

Supreme Court of Oregon

April 15, 1901

Appeal from circuit court, Coos county; J.W. Hamilton, Judge.

Action by William Howell against Alfred Johnson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J.W. Bennett, for appellant.

A.J Sherwood, for respondent.

WOLVERTON J.

The plaintiff sues for a balance claimed to be due him on the purchase price of certain saw logs sold and delivered by him to the defendant, of the alleged value of $13,832.72, of which amount he has paid $11,883.50. The defendant denies that he received logs of that value, or of any greater value than $11,004.36, including stumpage, or that he paid plaintiff any other or greater sum than $11,093.83, and affirmatively alleges that the logs were purchased by him in pursuance of an express contract in writing, subsequently modified by verbal agreement respecting the manner of ascertaining the quantity, which was to be determined by the amount of lumber manufactured therefrom at the mill; and further, to the effect that no charge should be made for logs out of which merchantable lumber could not be cut of the length of 12 feet or over; and, for a further and separate defense, sets up several accountings alleged to have been had between the parties of all matters of business in which they were mutually concerned, the last of which was had on October 15, 1898, whereby it was agreed that there was a balance of $104.98 due the defendant. Subsequent transactions are alleged to have taken place between them, whereby such indebtedness was reduced to the sum of $89.47, for which judgment is asked. All these matters are put in issue by the reply. For the purpose of showing, by the admissions of the defendant, the amount of lumber for which he was entitled to credit, the plaintiff offered in evidence divers statements of account, all lengthy, except one rendered him by the defendant,--the first, bearing date August 1, 1898, showing upon the debit side various items of cash and supplies furnished plaintiff, and upon the credit side items of logs, and a balance of $679.99 brought down July 31st in favor of plaintiff; the second, of date September 1st, opening with "August 1, balance $557.06," in favor of plaintiff, and closing "August 31, by balance, $861.49," on the same side; the third, of date October 15th, opening with "September 1, balance, $719.76," in favor of plaintiff, closing "October 15, balance, $104.98," in favor of defendant; a fourth was rendered December 17th, opening with "October 1, balance, $846.48," in favor of plaintiff, and closing, "December 17, balance, $283.26," in favor of the defendant; and another, of the same date, charging the plaintiff by first item with, "Balance, December 17, $283.26," and closing with balance against plaintiff of $77.77. The defendant's bookkeeper testified that these accounts were rendered and sent by mail to the plaintiff about the time they bear date; that he was frequently at the mill, and had at no time made any objections thereto, until about December 17, 1898, shortly after he (the bookkeeper) refused to pay an order drawn by him on the defendant, when he made an objection in writing. The writing referred to is a letter bearing date December 13th, which the defendant testifies is the first objection ever interposed to his tally of the lumber at the mill. The plaintiff tacitly admits the receipt of the statements of account in the regular course, but adduced testimony tending to show that shortly after October 15th, and after he had received the statement of that date, he explicitly informed the defendant that he could not accept his scale of the logs, because it was running very much short of his; that prior to that date he was constantly delivering logs under his arrangement with the defendant; that he endeavored at numerous times, by sending expressly for the purpose, to get the defendant's scale, but was unable to obtain more than a statement of the stuff sawed, according to the mill tally, which was given to him on but two occasions. The testimony of the parties is conflicting touching the specific contract under which the logs were sold and delivered, and especially so as it regards any modifications, as alleged in the answer, to accept the tally actually cut in the stead of the usual scale of the logs. The defendant asked the court to give the jury, among others, the following instructions:

"No 9. If you find from the evidence that on or about the 15th day of October, 1898, the defendant rendered to the plaintiff the account which he claims in his answer to have delivered to the plaintiff at that time, showing the balance due from the plaintiff to the defendant of $104.98 and that plaintiff had an opportunity to object to its correctness to defendant, but failed to do so until December 17, 1898, and that after receiving the statement of account of October 15, 1898, the plaintiff continued to deal with the defendant in buying supplies for his logging camp and supplying the defendant with logs, and did not object to the correctness of the account rendered him by defendant until ...