Johnson v. Burnham

• Decision Date: 15 November 1921
• Citation: 115 A. 261
• Parties: JOHNSON v. BURNHAM et al.
• Court: Maine Supreme Court

115 A. 261

JOHNSON

v. BURNHAM et al.

Supreme Judicial Court of Maine.

Nov. 15, 1921.

On Motion and Exceptions from Supreme Judicial Court, Washington County, at Law.

Action by David C. Johnson against Fred T. Burnham and others. Verdict for plaintiff. On motion and exceptions. Exceptions and motion sustained.

Argued before CORNISH, C. J., and SPEAR, DUNN, MORRILL, and DEASY, JJ.

Gray & Sawyer, of Milbridge, for plaintiff.

R. J. McGarrigle, of Calais, for defendants.

DEASY, J. About July, 1918, the parties to this suit entered into a contract, whereby the plaintiff agreed to set up his portable sawmill upon the defendant's land in Steuben and saw logs for $5 per M. Pursuant to this contract, the mill was set up, 640 M of logs were sawed, and the sawing paid for as agreed.

But the plaintiff contends that the defendants agreed to deliver to him for sawing of 1,500 M of logs. The defendants deny this and say that there was no agreement to deliver any specified quantity. This issue was submitted to a jury. The plaintiff recovered a verdict.

It appears that on July 19, 1918, the parties made and signed a contract in writing in the following form:

"Agreement. July 19, 1918.

"Agreement between D. C. Johnson of East Orland, Maine, party of the first part; and Burnham Brothers, party of the second part for sawing of timber on Nash lot and McDavitt lot adjoining, also, if party of the second part desires, timber, on Leighton lot, at Steuben, Maine, as follows: Party of the first part agrees to locate his portable sawmill on Nash lot together with necessary fixtures, boiler, etc., ready to begin operations on or before September, 1918. Party of the first part to furnish all necessary labor, mill supplies, etc., and saw timber into lumber of thicknesses desired by party of the second part, as much as possible to be sawed square edged. Party of the first part agrees to saw and deliver at mill, to party of the second part, sufficient board sticks to stick all lumber. Party of the first part to saw at his own expense boards for covering in mill, but to leave same on lot when through sawing. Party of the second part agrees to deliver logs on skids at the mill, and remove lumber as fast as sawed, from tail of mill. Party of the second part agrees to pay party of the first part weekly, for sawing as shown by survey, at the rate of $5 (five) per thousand, except that pay for about one week's work shall be held back until completion of job. Party of the first part to use slabs and waste wood for fuel, but however, the party of the second part is to have the privilege, if he so desires, to put in a so-called 'Dutch Oven' at his own expense, and in such case party of the first part agrees, as far as is possible, to use sawdust for fuel. The party of the second part agrees to remove slabs as fast as made.

"[Signed] Burnham Brothers.

"[Signed] D. C. Johnson.

"[Signed] A. H. Blaisdell."

The written contract obviously contains no agreement to deliver for sawing 1,500 M or any specified quantity of logs. Unless such agreement is shown by legally competent evidence outside the written contract, the verdict cannot be sustained.

By uncontradicted evidence it appears that the defendants advertised for a mill to saw 1,500 M of logs, and that the plaintiff having answered the advertisement, received from the defendants a letter saying: "Our timber is located in Steuben near Dyer Bay—about 1,500,000 mixed wood."

Testimony was introduced by the plaintiff (strenuously denied and disputed) tending to show that the defendants verbally agreed that the quantity of logs to be delivered for sawing should be 1,500 M.

All the evidence in this paragraph referred to was admitted against the defendants' objection and subject to their exceptions.

The defendants rely upon two correlated legal principles, which may be stated thus: Where parties have entered into a written contract on its face appearing to be complete, it presumptively embodies the entire contract between them relating to the subject-matter; and, in an action at law, evidence of communications prior to or contemporaneous with the making of a written contract cannot be admitted to vary or contradict such contract.

These principles are elementary. The plaintiff does not dispute them, but says that they do not apply to the facts in the pending case.

The plaintiff contends: (1) That the evidence admitted subject to the defendants' objection neither contradicts nor varies the written contract. The contract is an "agreement * * * for sawing of timber on the Nash lot and the McDavitt lot."

The plaintiff seeks to inject into it a parol agreement on the defendants' part to deliver for sawing 1,500 M of lumber, irrespective of the amount of lumber upon the specified lots. Even if this does not contradict the written contract, it assuredly varies it. (2) That the alleged agreement to deliver for sawing 1,500 M of logs was an independent collateral contract and as such is provable by parol.

It Is, of course, true that no law forbids parties to make two contracts, one written and the other oral, respecting the same subject-matter, if the fact is clearly shown: if there is no conflict between the...