King v. Merriman

• Decision Date: 23 December 1887
• Citation: 38 Minn. 47
• Parties: HARRIET F. KING <I>vs.</I> ORLANDO C. MERRIMAN and others.
• Court: Minnesota Supreme Court

Page 47

38 Minn. 47

HARRIET F. KING vs. ORLANDO C. MERRIMAN and others.

Supreme Court of Minnesota.

December 23, 1887.

Plaintiff brought this action in the district court for Hennepin county, to recover the value of pine timber alleged to have been wrongfully cut and removed by defendants from plaintiff's land, and converted to their own use. The defendants, in their answer, admitted the cutting and removal, but justified it under a contract made by plaintiff with Leighton & Fenwick, and by them assigned to the defendants. Upon the trial, before Rea, J., and a jury, the contract was held inadmissible, the timber in question having been cut after the logging season of 1884-85. A verdict was directed for the plaintiff for $22,042, being the value of the timber at the date of demand therefor, when it was in the Anoka boom in the Mississippi river. Plaintiff appeals from an order granting a new trial. In a memorandum accompanying this order, the court below stated that it was of opinion that its interpretation of the contract upon the trial was erroneous.

The contract relied on by defendants, and considered in the opinion, is partly printed and partly written with a pen, and is as follows: (The portion which is included in brackets is printed matter erased by the drawing of a pen through it, and that portion which is in italics is matter written with a pen; the remaining portion being printed)

"Articles of agreement made and entered into this first of November A. D. 1883 by and between [Weston Merritt] Harriet F. King, of Minneapolis, Hennepin county, Minnesota, party of the first part, and Herman Leighton and William Fenwick, of Minneapolis, Hennepin county, Minn., parties of the second part, witnesseth:

"That the said party of the first part, for and in consideration of the promises, stipulations, and agreements hereinafter contained to be performed on the part of the said parties of the second part, do hereby grant unto the said parties of the second part, their executors, administrators, and assigns, the right, privilege, and permission to enter and cut, during the logging seasons of 1883-4 and 1884-5, all the pine timber fit for saw-logs growing upon the following described lands situated in the county of Morrison in the state of Minnesota, to wit: The South West quarter (S. W. ¼) of Section Thirty-five (35) in Township Forty-one (41) Range Twenty-eight (28).

"And the said parties of the second part, in consideration of the grant, privilege, and permit aforesaid, do hereby promise and agree for themselves, their executors, administrators, and assigns, that they will enter upon said lands, as soon as the regular logging season aforesaid shall commence, with a sufficient number of men and teams to enable them to cut and haul all the timber upon said land suitable for saw-logs [and that will make two logs of not less than twelve feet to the tree, — inches in diameter at the top; and] that they will cut the same clean acre by acre as they go, without waste, and with as little damage as practicable to the young timber; that they will bank and land said logs separately from all others, in such manner as to afford all reasonable facilities for scaling and driving the same; that they will mark the same in a plain and substantial manner, with the following log-mark to wit, L∴F (L three scalps F) which said mark shall be properly recorded in the office of the surveyor-general of logs and lumber of the second district, in the name of said party of the first part; that [from] for the logs so to be cut as aforesaid [and out of the first of said logs of an average quality that shall be driven into Anoka boom] they will pay or cause to be paid to the party of the first part, as stumpage on said logs, the aggregate sum of seven thousand, seven hundred and fifty dollars, as hereinafter specified.

"Provided, however, and it is hereby expressly understood and agreed by and between the parties hereto, that until the terms of this contract shall have been fully complied with and performed on the part of the said parties of the second part, all the logs which may be so cut as aforesaid, shall remain the property of the said party of the first part.

                  "And it is further mutually agreed that in case the said parties of
                the second part shall fail to comply with the terms of this agreement
                and the said party of the first part, or her agent, shall have the right
                and is hereby fully empowered, at [his] her or her agent's option, at
                any time to enter upon and take possession of said logs, as well as
                any lumber manufactured therefrom, wheresoever the same may be
                and to sell the same upon such terms as to [him or his] her or her
                agent may seem best, and from the proceeds of said sale to retain
                and keep as stumpage $7,750.00 [per thousand feet board measurement]
                for all the logs which shall have been cut under this contract
                together with all the costs and expenses of taking possession of, keeping
                and selling said logs and lumber, or either, with a reasonable
                compensation for the time and trouble of [himself or his] herself or
                her agent in attending thereto, paying the balance, if any, to said
                parties of the second part; that all logs cut upon said lands, or banked
                or landed with them, as well as any lumber made therefrom, shall be
                scaled by the surveyor general of the second district of Minnesota, or
                such other party as may be mutually agreed upon by the parties hereto
                and the scale-bill rendered by him shall be final and conclusive between
                the parties hereto; provided, that, if from any cause said party
                of the first part shall see fit to have a rescale [by said]
                              she shall have the right to cause the same to be made,
                and the expenses of scaling said logs shall be equally borne by said
                

 parties of the first and second part; except that said parties of the second part shall, at their own proper cost, board the said scaler and his assistants while engaged in making said scale or survey.
                

"That in case of any dispute or disagreement between said parties in regard to cutting [clean or without proper economy or] without waste or damage to the growing timber, or any or either, the matter of disagreement shall be referred to the said surveyor general or such other person as may be mutually agreed upon, whose decision in writing, delivered to the said parties respectively, or their agents, shall be final and conclusive between the parties, and shall be a bar to any further adjudication upon such question or questions.

"The stumpage provided for in this contract shall be paid as follows: Three thousand dollars in cash, upon the execution and delivery of this contract, receipt whereof is hereby acknowledged by the party of the first part, and the remainder, four thousand seven hundred and fifty dollars, ($4,750.00,) shall be paid on or before June 15, 1884, it being understood and agreed that said first party will at that date accept satisfactory notes, running not to exceed ninety days, and bearing interest at the rate of seven (7) per cent. per annum, for said last payment of $4,750.00, but failing to deliver such notes at the time of final payment as above, said second party shall make said payment in cash, on or before June 15, 1884, as above.

"In testimony whereof the said parties of the first and second parts have hereunto set their hands in duplicate, the day and year above written.

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