Maxwell v. Lee

• Decision Date: 17 February 1886
• Parties: MAXWELL v LEE AND ANOTHER, COPARTNERS, ETC.
• Court: Minnesota Supreme Court

34 Minn. 511

27 N.W. 196

MAXWELLvLEE AND ANOTHER, COPARTNERS, ETC.

Supreme Court of Minnesota.

Filed February 17, 1886.

Appeal from an order of the district court, Hennepin county, denying motion for new trial.

Hart & Brewer, for respondent, S. W. Maxwell.

Rea, Kitchell & Shaw, for appellants, J. W. Lee and another, copartners, etc.

MITCHELL, J.

The plaintiff brings this action to recover the balance of the contract price of a quantity of logs sold and delivered to defendants. Defendants, by way of counter-claim, allege that the logs delivered were unsound, and not of the quality agreed on, and ask to recoup their damages against the claim of plaintiff. The contract between the parties was drawn rather in artificiality, and without much regard to the order of time; but, according to our construction, its terms were as follows: Plaintiff was, during the logging season of 1883-84, to cut and bank on Bradbury brook 500,000 feet or more of “good, smooth, sound” logs. These logs were to be subject to the inspection and approval of defendants when “banked.” If approved on such inspection, the plaintiff was then to drive them into the boom of the Mississippi & Rum River Boom Company. The defendants were to pay plaintiff $6.25 per M. feet, payable as follows: $1 when banked, on inspection and approval, in lots of not less than 50,000 feet; $1 when all banked; $1 when all in boom; $1 when stumpage became due; and the balance of $2.25, November 1, 1884, provided the logs were all in the boom. A settlement was to be had “at the end of the logging season,” which we understand to mean in the spring after the logs were all banked, but before they were driven. On this settlement defendant was to give plaintiff a due bill for the amount due on the last payment. The contract also provided that defendants were, at the outset, to “advance” plaintiff $100 in supplies, which was to be refunded, with interest, in case the logs, on inspection by defendants, did not receive their approval.

We think it clear that the inspection and approval of the logs by defendants were to be had on the bank, before they were driven, and before any part of the purchase price was paid. It is hardly to be supposed that the parties intended that this inspection should be subsequent to the settlement between them at the end of the logging season. The object of this inspection was to enable defendants to ascertain the quality of the logs, and determine whether or not they would accept them. This was for the benefit of both parties, so as to enable them to determine their future action in the premises. It is not reasonable to presume that it was contemplated that defendants should “settle” with plaintiff, and make successive payments, or that plaintiff should drive the logs down to the boom before it was determined whether or not they would be accepted. Our view is also corroborated by the fact that express provision is made for refunding the $100 advance, in case the logs should not be approved on inspection, while no provision is made for refunding, in such a contingency, any of the payments on the contract price, which clearly indicates that the parties contemplated that the inspection was to precede any such payments; and, if we may refer to matters of common knowledge, our construction of the contract is rendered the more reasonable by the fact that the place where the logs are banked is, in such eases, the usual as well as the most convenient place for inspection to ascertain their quality. It may also be observed that (if we are right in this) while the contract in its inception was a purely executory one for the sale and delivery, at a future day, of personal property not then in esse, and hence the article not specifically defined or selected at the time, yet, upon this inspection and approval, the contract would become one for the sale of specific logs in their then state, although the plaintiff would have to expend future labor upon them in driving them into the boom.

Turning now from the contract to the other evidence, and taking as true, as we must for the purposes of this appeal, the facts offered to be proved by defendants, it appears that plaintiff got out and banked some 950,000 feet of logs; that on March 27th (presumably “at the end of the logging season”) the parties had the settlement provided for by the contract, at which the defendants gave plaintiff a due-bill for the balance due on the last payment, some $700; that the remainder of the contract price was all paid before suit, but at what particular date does not appear. The evidence is silent as to whether or not there was any actual inspection or express acceptance by defendant of the logs on the bank. There is nothing to show that there was not. There is nothing to show that defendants were deprived of the opportunity to inspect, or that there was any agreement or understanding that this inspection should be postponed. Neither is there anything to indicate that the defect now complained of (unsoundness) was not patent, visible, and apparent on mere ordinary observation, or that there was any attempt on part of plaintiff to conceal the real quality of the logs from defendants. The logs were, as required by the contract,...