Huber v. Blackwell Lumber Co.

• Decision Date: 28 May 1915
• Citation: 148 P. 903,27 Idaho 373
• Parties: JOHN HUBER, Respondent, v. BLACKWELL LUMBER COMPANY, Appellant
• Court: Idaho Supreme Court

148 P. 903

27 Idaho 373

JOHN HUBER, Respondent, v. BLACKWELL LUMBER COMPANY, Appellant

Supreme Court of Idaho

May 28, 1915

LOGGING CONTRACTS-DUTY OF CONTRACTOR TO PROVIDE MEANS OF PERFORMANCE-DIVISIBLE CONTRACT-PARTIAL PERFORMANCE.

1. It is the duty of one who contracts to deliver logs, in the absence of a provision in the contract to the contrary, to provide all necessary means, including roads and rollways, to enable him to complete the delivery.

2. A party who has failed to perform his contract in full to deliver logs may recover compensation for the logs delivered according to the contract price, less damages occasioned by his failure to complete the contract.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.

Action on contract. Judgement for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

John P Gray and Frank McCarthy, for Appellant.

Under the terms of the contract, it was the duty of respondent to supply all means and appliances necessary to prosecute the work and to deliver the logs along camp 4 spur on or before Nov. 1, 1912, and the law will presume that the supplying of such appliances was a part of the contract price and covered thereby. (Godkin v. Monahan, 83 F. 116, 27 C. C. A 410; Gabrielson v. Hague Box & Lbr. Co., 55 Wash. 342, 133 Am. St. 1032, 104 P. 635.)

Under the form of action which the respondent brought, under his proof and under the issues he could not recover under quantum meruit for the work done by him, for where a contract is entire and one party not in default is willing to complete its performance, the other party who abandons the contract or refuses to perform cannot recover on the contract or on the quantum meruit the value of the labor he has expended in its partial performance. (Naylor v. Adams, 15 Cal.App 548, 115 P. 335; Johnson v. Fehsefeldt, 106 Minn. 202, 118 N.W. 797, 20 L. R. A., N. S., 1069; Galvin v. Prentice, 45 N.Y. 162, 6 Am. Rep. 58; Cohn v. Plumer, 88 Wis. 622, 60 N.W. 1000; Grand Forks Lbr. Co. v. McClure Logging Co., 103 Minn. 471, 115 N.W. 406; Hetherington v. Firth, 210 Mass. 8, 95 N.E. 961.)

The contract in this case does not come within the rule laid down even in those states most liberal in construing contracts severable so as to allow a recovery pro tanto for part performance, because:

1. Its essence is entirety. By its express terms full performance is a condition precedent to the deferred payments.

2. The acts of the lumber company in accepting and in paying in part for monthly deliveries of the logs could not be declared by the court a severance of the contract on its part, for in doing so it was complying with an express condition of the contract taken in its entirety, and was not a waiver by it of the condition precedent to deferred payments, to wit, full performance by the plaintiff.

By the terms of the contract plaintiff agreed to sell and deliver to defendant all the white pine timber then standing on his quarter section, and also at least one million feet of mixed logs on or before a fixed date. Therefore while the subject matter of the contract was capable of subdivision into lesser units, the above expressions of the contract are quite conclusive that such was not the intention of the parties. (Shinn v. Bodine, 60 Pa. St. 182, 100 Am. Dec. 560; 9 Cyc. 650; Widman v. Gay, 104 Wis. 277, 80 N.W. 450; Mallory v. Mackaye, 92 F. 749, 34 C. C. A. 653; Easton v. Jones, 193 Pa. St. 147, 44 A. 264; Oldewurtel v. Bevan, 117 Md. 645, 84 A. 66.)

McFarland & McFarland, for Respondent.

The policy of this court has been not to take a case from the jury if there is any evidence for the jury to consider. (Adams v. Bunker Hill M. Co., 12 Idaho 651, 89 P. 624, 11 L. R. A., N. S., 844; Calkins v. Blackwell Lbr. Co., 23 Idaho 128, 143, 129 P. 435.)

"A part performance or a defective performance of a condition precedent is generally not sufficient, but after one party has performed the contract in a substantial part, and the other party has accepted and had the benefit of the part performance, the latter may thereby be precluded from relying upon the performance of the residue as a condition precedent to his liability. In such case he must perform the contract on his part and must rely upon his claim for damages in respect of the defective performance." (9 Cyc. 645.) The contract involved in this action is a severable contract. (Gomer v. McPhee, 2 Colo. App 287, 31 P. 119.)

This being a severable contract, Huber is not required to sue upon a quantum meruit for any breach of contract by appellant, but he has a right to rely upon any want or lack of performance by appellant. (Presbyterian Church v. Hoopes A. S.C. & P. Co., 66 Md. 598, 8 A. 752; Abbott v. Wyse, 15 Conn. 254; Andre v. Hardin, 32 Mich. 324; Todd v. Huntington, 13 Ore. 9, 4 P. 295; Merrow v. Huntoon, 25 Vt. 9; Baltimore & O. R. Co. v. Lafferty, 2 W.Va. 104; Woodford v. Kelley, 18 S.D. 615, 101 N.W. 1069; Front St. M. & O. R. Co. v. Butler, 50 Cal. 574; Foeller v. Heintz, 137 Wis. 169, 118 N.W. 543, 24 L. R. A., N. S., 327; McDonough v. Evans Marble Co., 112 F. 634, 50 C. C. A. 403.)

MORGAN, J. Budge, J., concurs. SULLIVAN, C. J., Dissenting.

OPINION

MORGAN, J.

This appeal was heard at the December, 1914, term and an opinion was rendered. A petition for rehearing was granted, the case was reargued and again submitted for decision.

The action was brought to recover $ 2,619.77 alleged to be the balance due from appellant to respondent for sawlogs sold and delivered by respondent to appellant under a written contract, which is, in part, as follows:

"(1) The party of the first part agrees to sell and deliver to the party of the second part all the merchantable white pine timber now standing on the above-described land; and at least one million (1,000,000) feet of red fir, tamarack, white fir and cedar logs from the lands of the party of the first part and to deliver the same to the party of the second part decked on camp 4 spur of the Coeur d'Alene & Southern railroad in section twenty-three (23), township forty-nine (49) north, range five (5) W., and to sell the same unto the party of the second part at and for the following prices, to wit:

White pine

$ 8.50 per thousand feet

Red fir

4.50 per thousand feet

Tamarack

4.50 per thousand feet

Cedar

4.50 per thousand feet

White fir

4.50 per thousand feet

"And the party of the second part hereby agrees to buy and purchase the same at the prices above stated.

"(6) The party of the first part further agrees to complete this contract by cutting and decking and delivering along the said spur above mentioned all of the logs covered hereby on or before the 1st day of November, 1912.

"(7) It is further agreed by and between the parties that payment for said logs shall be made as follows:

"Four dollars ($ 4) per thousand feet on the 15th day of each month for all logs scaled the previous month. The balance due the party of the first part to be paid ninety-one (91) days after the completion of this contract.

"(10) The party of the first part agrees to deck the said logs on the said camp 4 spur of the railroad track as above provided, in good and workmanlike manner."

It is alleged in the amended complaint and admitted in the amended answer that respondent delivered to appellant 524,110 feet of white pine logs and 522,550 feet of mixed logs, consisting of red fir, tamarack, cedar and white fir, and that the appellant has paid to the respondent upon the logs so delivered the sum of $ 4.00 per thousand feet and no more. It is alleged by respondent and denied by appellant that there is now due and owing to respondent from appellant for said logs, in the aggregate, a balance of $ 2,619.77.

The appellant alleged and relied upon two counterclaims based upon respondent's failure to deliver a certain portion of the logs mentioned in the contract, and asked for an affirmative judgment against respondent in the sum of $ 3,435.23.

It appears from the transcript that during the month of October, 1912, respondent abandoned his contract, and he assigns as his reason for so doing that appellant violated the contract by failing to remove the logs which had been delivered and by permitting the rollways to become so congested as to prevent him from completing the delivery.

Camp 4 spur is a branch of a logging railroad and is a little more than a mile long in said sec. 23. Upon said spur is located a logging camp known as camp 4, where the rollways are situated upon which the logs were delivered. Said camp and rollways are the property of appellant and respondent was permitted to use said property in his logging operations. It appears that from some time in July until some time in August the engine, with which cars on said spur were moved, was broken, and hauling was suspended, and that thereby the rollways at camp 4 became congested with logs.

There is conflict in the evidence as to whether or not additional decking ground along said spur in sec. 23 could have been procured by respondent with reasonable expense. It is contended by respondent that appellant breached the contract by its failure to keep the rollways clear, and appellant contends that respondent breached the contract by his failure to deliver the full amount of the logs and that abundant ground was available along said spur in sec. 23 for decking purposes, and that it was respondent's duty, under the contract, to construct additional rollways and roads, if necessary, in order to make the delivery. It is clear that it was the duty of respondent to provide all means necessary to fulfill his contract and, since nothing therein contained provides to the contrary, it was his duty, if suitable ground...