Jones v. Foster

• Decision Date: 23 November 1886
• Citation: 67 Wis. 296,30 N.W. 697
• Parties: JONES AND OTHERS v. FOSTER AND OTHERS.
• Court: Wisconsin Supreme Court

67 Wis. 296

30 N.W. 697

JONES AND OTHERS

v.FOSTER AND OTHERS.

Supreme Court of Wisconsin.

November 23, 1886.

Appeal from circuit court, Jackson county.

Action for damages for breach of contract. Judgment for plaintiffs. Defendants appeal.

November 12, 1876, the defendant Foster owned a lot of timbered lands in Clark county, Wisconsin, and a saw-mill in the town of Mentor, in that county. On the day named a large portion of the mill and machinery was destroyed by fire. January 15, 1877, the plaintiffs, Charles Merrill and Samuel H. Jones, and one Cummings Merrill, were copartners engaged in manufacturing and sawing logs into lumber and shingles at Merrillan, Jackson county, under the firm name of Merrill, Jones & Merrill. By an agreement in writing made January 15, 1877, said Foster agreed, in effect, to sell and deliver to said Merrill, Jones & Merrill all there was left of his saw-mill so destroyed by fire, to be delivered on the ground where it then lay, to-wit, one engine, boiler, shafting, etc., for which he was to receive from them $1,500, with interest at the rate of 10 per cent. per annum, payment to be made in sawing, at the rate of $2.50 per thousand feet for all lengths less than 20 feet, longer timber not exceeding 32 feet at $3 per thousand feet, and also to make shingles at $1 per thousand feet. It was therein further agreed, in effect, that Foster should put his logs, in a workman-like manner, onto the bank of the stream on which Merrill, Jones & Merrill's mill was to be built, somewhere between that mill and the water-mill next above, known as the “Sam Jones mill;” that said Merrill, Jones & Merrill were to take the logs, and, after sawing, put the lumber on the cars on the track, in or near the mill, in as good shape as possible for unloading, and Foster was then to handle it; that Merrill, Jones & Merrill were to furnish and keep in repair a good track, with wood rail, from the mill to the G. B. & M. Railway, and also, in other directions from mill, enough to make room along-side of same to pile all lumber, and put three cars thereon, to be used at all times by said Foster for the purpose of moving lumber; that they were also at all times to make such varieties of dimensions and such quantity of shingles as Foster might order, and work up the logs economically, trimming the lumber to even lengths, with square edges and even thickness, and in all respects to make lumber and shingles as accurately as can be made in a first-class mill; that Foster was “to furnish logs, in yearly installments, to conform to the requirements of his trade, until all his timber” was “cut, or as nearly as” should “be profitable to cut,” from the lands described; that the time limited for cutting said timber was four years, and might be finished in two; that, after said mill machinery should be so paid for as above, Foster was “to pay for sawing, at the price above agreed upon, within ninety days from completion of each season, and to pay interest, after thirty days” from “the closing of the season, on all sums due for sawing, at the rate of ten per cent. till paid;” that “all logs put in any winter” were to “be sawed out during the season following;” that the shingles were to be assorted and packed in such manner and in such bundles as Foster might direct, and each bunch was to be marked with black paint in such manner as directed,--Foster furnishing stencil plates; that all of said machinery above conveyed, together with all the repairs, improvements, and additions put thereon and added thereto, were to be held by Foster as security for payment of purchase money or price, as above stipulated, and, in case of default in payment, Foster was at liberty at any time, by virtue of said agreement, to take possession of said property; that Foster was to have one-half of their piling-ground for piling his lumber.

January 3, 1879, Foster made an agreement with the defendant Richardson, wherein it was agreed, in effect, that Richardson should take possession of the timbered lands described, and the timber standing thereon, or lying on skids, and other property, for which he was to pay the amounts therein named in pine lumber, to be cut from said timber, and well manufactured in the manner indicated in said contract with Merrill, Jones & Merrill; that Richardson therein agreed to assume all obligations to which Foster was held by virtue of said first-named contract, and was also to enforce the obligations therein assumed by Merrill, Jones & Merrill, and was thereby entitled to collect of them the amount due on said contract, which was thereby transferred to said Richardson as a part of the property thereby conveyed to him; that, upon the fulfillment of said conditions and payment of taxes, Richardson was to have deeds of the lands, but all the property was to be and remain the property of Foster as security for the fulfillment of such conditions, and upon any default Foster was authorized to take possession without process of law. Prior to the commencement of this action Cummings Merrill withdrew from said firm, and, for value received, sold and assigned to the plaintiffs all his right, title, and interest in and to said agreement, and the property therein described, and the benefits arising thereunder.

About July 5, 1881, the plaintiffs commenced this action, alleging, in effect, the foregoing facts, among others, and that January 15, 1877, there was standing and growing on said lands logs and timber suitable and profitable to be manufactured into lumber and shingles,--in all not less than 3,000,000 feet of pine suitable for boards and timber of length under 20 feet, and also not less than 3,000,000 of shingle timber, suitable and profitable to be manufactured into shingles; that in pursuance of said agreement first mentioned, and for the purpose of fulfilling the same on their part, Merrill, Jones & Merrill erected, built, and maintained their saw-mill at the cost named, and took possession of said machinery purchased, and had performed, or had been ready and willing to perform, all the conditions of said agreement on their part, and still were, except in so far as they had been prevented therefrom by reason of Foster or Richardson, or both of them, refusing and neglecting to furnish the logs and timber, as agreed, and neglecting to perform any of the conditions of said agreement; that none of the conditions of the first-named contract had been performed by Foster or Richardson, except they had furnished about 275,000 feet of logs and timber to be sawed into lumber, and which was duly sawed and manufactured as agreed; that the time for furnishing the balance of logs and timber under the contract had expired before the commencement of the action; wherefore the plaintiffs demand judgment for $2,000 damages.

July 29, 1881, the defendants appeared by attorney, and put in a joint answer, in effect admitting the agreements, alleging non-performance on the part of the plaintiffs, and a general denial as to the matters not so admitted. After a trial of the cause, and on January 25, 1882, the defendants joined in an amended answer, wherein, in addition to denials, it was alleged, in effect, that Cummings Merrill was a necessary party; that Foster and Richardson were improperly united as defendants; and that there was no cause of action alleged against Richardson. The answer also set up three several counterclaims, each alleging non-performance on the part of the plaintiffs, and claiming damages therefor, the nature of which sufficiently appears in the special verdict.

Upon the last trial the jury returned two special verdicts or sets of questions, in effect as follows:

(1) That neither the defendants, nor either of them, furnished to the plaintiffs, to be manufactured into lumber by them at their mill, logs from said lands, in yearly installments, as required to supply the demands of Foster's trade for the years 1877, 1878, 1879, and 1880; (2) that the defendants, and each of them, violated the conditions of their contract, by not furnishing logs to the plaintiffs to be manufactured in the years 1877 or 1878 or 1879 or 1880; (3) that the defendants, and each of them, violated the conditions of the contract by selling a portion of the logs from said lands before any were delivered to the plaintiffs to be manufactured by them; (4) that the plaintiffs were justified in not sawing the logs actually put into the stream, as they were put in and to be sawed at plaintiffs' mill, during the years 1878, 1879, and 1880, except on the conditions by the plaintiffs imposed on the defendants; (5) that the plaintiffs did give the notice required of their option to manufacture shingles; (6, 7, and 8) that, at the time of making the contract, there was 2,550,000 feet of lumber, and 50,000 feet of timber for shingles, standing and being upon said lands, profitable for Foster to manufacture into lumber and shingles as per the terms of the contract; (9) that, if any logs were lost which were put into the streams by the defendants to be manufactured at plaintiff's mill, such loss was not occasioned through or by the fault or neglect of the plaintiffs; (10) that the plaintiffs had sustained $2,543.75 damages by reason of the contract being violated on the part of the defendants.

(1) That the plaintiffs built a mill wherein they could manufacture logs into lumber in all respects as accurately as could be made in first-class mills; (2) that, during the years 1879 and 1880, the plaintiffs did have a mill and pecuniary means whereby they could manufacture the defendants' logs into lumber in all respects as accurately as the logs could have been manufactured into lumber in a first-class mill, as they believed; (3) that the plaintiffs did not in the year 1879 or 1880, refuse to manufacture into lumber any of the logs cut from said lands unless the defendants would agree to pay to the plaintiffs in money a sum sufficient to pay the...