Johnson v. Burns et at.

Decision Date15 December 1894
PartiesJohnson v. Burns et at.
CourtWest Virginia Supreme Court

Logs Evidence Measurement.

A written contract shows, that logs are purchased at a given price per cubic foot, no mode of measurement being specified by it. Evidence is admissible to prove a contemporaneous oral agreement, that a certain mode of measurement shall be applied.

Logs Measurement.

Where such contract does not provide a mode of measurement, and there is no such special ageeement to apply a particular mode of measurement, and such logs are purchased with the knowledge on the part of the seller, that they are to be manufactured into sawed lumber, in ascertaining the cubical contents of the logs Scribners rule, designated "cubic measurement," reducing the logs to square measure is the rule applicable.

3. Contract Custom Usage.

Where a contract does not provide in a given particular, particular local custom may be proven for its interpretation, so it be brought home to the knowledge of the person to be affected by it, and so it do not violate fixed statute or common law.

4. Logs Measurement Custom Usage.

In measurement of logs, lumber, and timber, where there is no contract provision as to mode of measurement, Scribner's rule applies under section 17a, c. 59, Code 1891, and custom and usage have no application.

5. New Trial Evidence.

Under section 9, c. 131 (Ed. 1891) of the Code when exception is taken to the action or ornnion of the court upon a question involving evidence upon a motion for a new trial or otherwise, all the evidence, whether conflicting or not, must be certified, and this Court must consider all such evidence on both sides, though conflicting, not rejecting any. If upon such evidence the finding of the jury plainly appears to be contrary to the evidence or without sufficient evidence or plainly against the decided and clear preponderance of evidence, it ought to be set aside, even though the evidence be conflicting.

6. New Trial Evidence.

While a verdict may under the circumstances just stated be set aside, though the evidence conflict, yet the power to do so should be cautiously exercised.

7. Evidence Discretion Reversal.

Whether a party shall introduce further evidence, after that of the adverse party has been heard, is a matter within the discretion of the court, and its exercise will rarely, if ever, be the cause of reversal in an appellate court. Clearly 1: e is entitled to introduce evidence to rebut that of the other party.

W. E. IIaymond for plaintiffs in error

D. Strader and A. W. Corley for defendant in error.

Brannon, President:

This is a writ of error taken by Burns Bros. & Hoffman to a judgment of the Circuit Court of Webster county, rendered in an action by John !N". Johnson against them.

The action was for the recovery of the price of timber sold Barns Bros. & Hoffman by Johnson by written contracts, to be paid for at so much per cubic foot, and controversy arises out of a difference as to the mode of measurement, Johnson contending that the logs must be measured solid, excluding nothing to square them, while Burns Bros. & Hoffman contend that the logs must be brought to the square. The contract being silent as to the guide or rule of measurement, under section 17a, c. 59, Code, 1891, Scribner's rule must apply. Neither side denies this. But Scribner's rules contain two modes of measurement one for ascertaining the solid, cubical contents of spars or other round timber, the other for ascertaining cubical contents after bringing logs to the square. The question is, which of those rules shall be used in the case, round or square measure?

First Question. The plaintiff gave in evidence the written contract, and the rule of measurement, claimed by him as applicable, found on page 64 of Scribner's book for ascertaining solid cubical contents of round timber, and gave evidence of the number and contents of the logs he furnished; and then, on cross-examination of Gr. M. Burns, a witness for defence, and one of the defendants, counsel for plaintiff asked him if he agreed with plaintiff, at the time of making the written contract, that the timber should be measured giving the solid contents, no statement having been made by Burns or any witness for defendants touching any mode of measurement, to which question the defence objected, but the court overruled the objection, and the witness answered that there was no agreement as to the mode of measurement at the time of the execution of the written contract, but that he had previously explained to Johnson the rule under which his firm ascertained the cubical contents of logs that is, the rule on page 58 of Scribner's book. After the defendant rested, plaintiff, in rebuttal, as a witness for himself, stated, against objection by defendants, that at the time of the execution of the contract there was an agreement as to the mode of measurement, and that Burns agreed with him that he should have round measure, and the solid contents of the timber sold. It is urged that the court committed error in compelling Burns to answer the question whether he had such agreement with plaintiff as to mode of measurement, and in allowing plaintiff to prove such agreement in two respects: First, that it allowed oral evidence to vary a written agreement; and, secondly, that it was in rebuttal of defendant's evidence and too late.

1. Was evidence of the oral agreement admissible? The cases are innumerable on the subject of when oral evidence does or does not vary or contradict writings, and the lines of distinction often so nice that best minds are taxed and become confused in seeing them; and it would be useless to attempt an elaboration of a subject which has been discussed through centuries in decisions and books found everywhere. All admit that oral evidence can not be admitted to vary or contradict a writing. As stated in 1 Greenl. Ev. § 275: "Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument." This Court, in Loekwoodv. Iloltaday, 16 W. Va. 651, held that "parol evidence, in the absence of fraud or mistake, will not be received to ingraft upon or incorporate with a valid written contract an incident occurring contemporaneously therewith, and inconsistent with its terms." This is in words a section of the syllabus in the well-considered case of Towner v. Lucas, 13 Gratt. 705. In Crawford v. Jarrett, 2 Leigh, 630, Judge Green, said: "Parol evidence can not be admitted (unless in case of fraud or mistake) to vary, contradict, add to or explain the terms of the written agreement by proving that the agreement of parties was different from what: it appears by the writing to have been." I think this is a correct and apt statement. These authorities I select as apt for application to this case.

Does the evidence of an agreement to pay by a measure giving solid cubical contents vary or contradict the terms of the contract, or add anything to or explain them by showing something in conflict with its terms? I think not. That contract says that so much per cubie foot is to be paid, but is silent as to the mode of measurement by which the number of cubic feet shall be ascertained. Scribner's book is applied by the law as the rule of measurement, but we find that it gives two modes of measurement for ascertainment of cubical contents one ascertaining the solid contents of spars or other round timber, the other the contents after bringing the logs to a square. Now, certainly the parties could apply either by incorporating it in the contract. They did not do so. Then which shall apply? Is it possible that an oral agreement that one of them shall be used can not be shown? It does not contradictor vary the writing, for that contains in its terms not a syllable on the point. It affords explanation by showing the intention of the parties, but does not vary or contradict the writing. Oral evidence is admissible to apply the instrument to the subject-matter, to enable us to execute it. 1 Green 1. Ev. §§ 286, 288. Where a description in a deed or other document is applicable to two or more objects, parol evidence is admissible to distinguish between the objects, as well as to identify that intended by the parties. 2 Whart. Ev. § 944.

The argument against the view just given would be, in effect, that in every case of such a contract, silent as to measurement, Scribner's rule is the law of the contract, and square measure the rule; and any oral evidence applying a different rule makes the contract have a different legal effect from that which its face imports in law, and therefore varies and contradicts it; adds to it something that varies its operation. Just here is the crucial pointIt does not do so because the contract does not in itself call for the one, rather than the other, of Scribner's two modes of measurement. Both are applicable to round timber, and we can not say, looking only at the eontract, jwhich it calls for. If it contained anything calling for the one method over the other, that would exclude oral evidence. If it had declared that the timber was to be sawed into lumber, I think this special oral contract evidence would not be admissible, because I think that the language of Scribner in connection with these two modes of measurement of round timber clearly shows that the one is applicable to timber sold for manufacture into lumber, while the other is for ascertainment of solid contents for tollage, or when the timber is to be used as spars or simply as round timber. We must construe Scribner as it is incorporated into statute. This writing contains no earmark of the intended use of the timber guiding us in the selection from Scribner of the mode of measurement, unless we say that, as it sells poplar timber, that is such earmark; but that would require us to take judicial notice of the fact as a fact that poplar is used only for conversion into sawed lumber, and such...

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