Leighton v. Grant

• Decision Date: 01 January 1873
• Citation: Leighton v. Grant, 20 Minn. 298 (Minn. 1873)
• Parties: LEVI LEIGHTON v. W. H. GRANT and others.
• Court: Minnesota Supreme Court

20 Minn. 298

LEVI LEIGHTON

v.W. H. GRANT and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Hennepin county, denying a new trial.

The action was upon a promissory note made by defendants, payable to the firm of Stanchfield & Leighton, of which

plaintiff was a member, and transferred by the firm to him.The substance of the answer is set forth in the opinion, as well as the facts on which the questions determined arose.The plaintiffs had a verdict.

Masterson & Simons, for appellants.

Young & Lowry, for respondent.

McMILLAN, C. J.

The defendants, upon the trial, introduced evidence tending to show that all the logs they had that season, except those they got from Stanchfield & Leighton, amounted to 330,000 feet, and that when their mill shut down, at the close of the season, there were 450 logs, and no more, in the pond and creek, amounting to not more than 75,000 feet.They also proved by the man who had charge of driving the Leighton logs, that he made a clean drive, leaving not a log on the landing or bank.They also proved that their mill was a steam saw-mill, with but one saw for manufacturing lumber, a double circular-saw.The defendants then offered to prove that "their mill, if worked to its utmost capacity, could not saw three and one-half million feet of lumber, from the time they began to saw, on the twenty-eighth of April, 1871, till they stopped sawing on the twenty-third of November, 1871."To this the plaintiff's counsel objected, that it was incompetent, irrelevant, and immaterial.The court sustained the objections, and the defendants excepted.

The object of the evidence was to show that Stanchfield & Leighton could not have cut the amount of logs which they claimed to have cut.It does not appear, from the bill of exceptions, that the defendants, between the times stated in the offer, sawed into lumber at this mill all the logs cut by Stanchfield & Leighton, and all those driven by the witness Gorton.The evidence offered, which at best was of an inferior character, was, therefore, properly rejected.

The contract for cutting, hauling, and marking logs, set up in the answer of the defendants, and out of which the defense arises, contains the following stipulations: "All of which logs shall be measured and scaled by the surveyor general of logs for the Stillwater district, or his deputy, whose decision shall be final.* * * And it is further agreed that the said parties of the first part (Stanchfield & Leighton) shall board the scaler during the time of scaling said logs, and said parties of the second part (Grant, McCaine & Co.) shall pay the scale bill."

Chapter 32 of the General Statutes divides the state into seven districts for the survey and measurement of logs, etc., and provides for the appointment of a surveyor general of logs in each of such districts.Section 11 of the same chapter makes it the duty of the surveyor general, or his deputy, at the request of the owner, "to survey any logs, and, upon completing such survey, to make out a true and correct scale bill thereof, stating the person by whom, the time when, and place where, such logs, timber, or lumber was scaled, at whose request, and to whom scaled, if to any one, and the scale mark placed thereon, the number of logs, or pieces of timber, together with the mark or marks thereon, and the number of feet therein contained, and shall [to] sign the same, and thereupon he shall [to] record such bill in the books of his office; * * * and such bill, and the record thereof, shall each be prima facie evidence of the facts therein stated."Gen. St. 244.

It is claimed by the appellants that the stipulation in the agreement, that the decision of the surveyor general of logs or his deputy, as to the measurement of logs, "shall be final," is void for two reasons: First, the effect, as evidence, of the certificate, return, and record of the surveyor general, or his deputy, is fixed and determined by the statute, and cannot be extended, limited, controlled, changed, or in any manner affected by agreement of the parties; second, the surveyor general and his deputy are public officers, having certain fixed public and official duties to perform, and any agreement of parties, the object of which is to stifle, shut out, or in any way exclude evidence of, or inquiry into, the manner in which they have performed their duties, is, for obvious reasons, contrary to public policy and void.

There is no express provision in this statute, or any other which has come to our notice, prohibiting the parties from making a stipulation of this kind.In the absence of express prohibition a party may waive a constitutional, as well as a statutory, provision made for his benefit, where no principle of public policy is violated.Sedg.St. & Const. Law, 109.

No law exists on our statute-book requiring logs to be scaled by a surveyor general, in order to make a valid sale thereof.It was not necessary, therefore, that these parties should have had the logs, which are the subject of this contract, scaled by the surveyor general or his deputy; it was competent for them to have stipulated that the quantity should have been ascertained and determined by any other person, and that the decision of such person should be final as between them.Johnson v. Howard, post, —;Mon. Nav. Co. v. Fenton,4 Watts & S. 205;Faunce v. Burke,16 Pa. St. 469;Veazie v. Bangor,51 Me. 509.The selection of the surveyor general or his deputy, as the scaler, was, then, a matter of convenience to the parties.There is nothing upon the face of the contract which indicates that the contract was made for any other purpose.The object of this stipulation was not to shut out, stifle, or in any way exclude evidence of or inquiry into the manner in which the surveyor general or his deputy discharged their official duties, for that can be done in a proper proceeding.It was merely to make conclusive, as between them, the act performed for them by a public officer, whom they were authorized to select as their agent, and whose official acts, in the absence of evidence to the contrary, are right.We see nothing in the stipulation which is contrary to public policy, and are of opinion that it is valid and effective between the parties.

It appears from the testimony that a settlement was made on the eighteenth of March, 1871, for logs cut under the contract, at which the plaintiff represented Stanchfield & Leighton, and the defendants, Grant, McCaine & Co., were represented by Daniel McCaine, one of the firm.The settlement was made upon the certificate of John Lowell, deputy surveyor of logs, dated Grindstone river, March 17, 1871, which was in evidence, and showed that there were cut 16,172 logs, making 3,613,538 feet.The defendants, up to the time of the settlement, had paid Stanchfield & Leighton for cutting logs under the contract, in cash, $6,000, and upon settlement gave them four notes, all dated March 18, 1871, — one note for $1,000, due in 30 days; one for $1,882.46, due in 43; two other notes, for the same amount, one due in 104 days after date, and the other 84 days after date.The note due in 104 days is the note upon which this action is brought.The logs cut by Stanchfield & Leighton for defendants, under the said agreement, were the sole consideration for these notes.

Upon the trial the defendants requested the court to instruct the jury as follows: "First.If the jury believe, from the evidence before them, that the amount of logs reported by the scaler, John Lowell, to have been cut by Stanchfield & Leighton for the defendants, under the agreement between them, was 1,000,000 feet, or over, more than they in fact cut, their verdict must be for the defendants.Second.If the jury find from the evidence before them that the defendants have, in...