Mississippi River Logging Co. v. Robson

• Decision Date: 05 August 1895
• Docket Number: 540.
• Citation: 69 F. 773
• Parties: MISSISSIPPI RIVER LOGGING CO. v. ROBSON.
• Court: U.S. Court of Appeals — Eighth Circuit

69 F. 773

MISSISSIPPI RIVER LOGGING CO. v. ROBSON.

No. 540.

United States Court of Appeals, Eighth Circuit.

August 5, 1895

This was a suit by John Robson, the defendant in error, against the Mississippi River Logging Company, the plaintiff in error, to recover damages for a breach of a written contract between said parties, that was entered into on August 23 1882. A jury having been waived, the case comes before this court for review on a special finding of facts made by the Honorable O. P. Shiras, before whom the case was tried. The several special findings that are most material to the discussion of the several errors that have been assigned are as follows:

'(2) I find that, for a number of years prior to 1882, the defendant company was engaged in the business of running and driving logs and timber down the Flambeau and Chippewa rivers, in the state of Wisconsin, to the Mississippi river including in such business logs and timber owned by the defendant and logs and timber owned by third parties.

'(3) I find that, prior to 1882, the general mode in which the said business was carried on was as follows: The logs and timber were placed by the owners thereof on the banks or in the water of the said Flambeau and Chippewa rivers and the tributaries thereof. The driving of the logs down the rivers was performed by the defendant corporation or by the Chippewa Lumber & Boom Company, which latter company was under the control and management of the defendant. When the logs reached Beef Slough boom, which was situated on the lower part of the Chippewa river, they were taken possession of by the Beef Slough Boom Company, and were run into the boom managed by said company, and the logs belonging to the different owners were separated from the common mass, and run into pockets. Having been thus assorted, they were then brailed and formed into rafts in proper condition to be taken in tow by the raft boats, which conveyed them to their several points of destination upon the Mississippi river.

'(4) I find that for a number of years prior to the year 1882 the plaintiff, John Robson, had been engaged in the lumber business upon the Mississippi river; that he had a sawmill at Lansing, upon that river, and that he brought the logs sawed at the mill from the lands tributary to the Flambeau and Chippewa rivers in Wisconsin; that he owned a quantity of timber lands tributary to these streams, from which he annually cut a number of logs, and that he also bought logs from other persons, or bought the right to cut logs from lands owned by other persons and tributary to the streams above named; that, for a number of years prior to 1882, all the logs cut or bought by the plaintiff in the regions tributary to the Flambeau and Chippewa rivers were driven for him by the defendant company or by the Chippewa Lumber & Boom Company.

'(5) I find that certain differences and disputes in regard to the handling of said logs, and the prices to be paid therefor by plaintiff, having arisen thereupon on the 23d day of August 1882, the plaintiff and defendant entered into a contract in writing, of the following tenor and effect.

"Articles of agreement made and entered into this 23d day of August 1882, by and between the Mississippi River Logging Company, a corporation organized under the laws of Iowa, party of the first part, and John Robson, party of the second part, witnesseth: Whereas, the party of the second part owns a large quantity of pine lands tributary to the Chippewa and Flambeau rivers and their branches in Wisconsin, and now has a large quantity of saw logs and timber in said streams, and expects to cut annually hereafter, and deliver in said streams, a large quantity of saw logs and timber to be driven to market down said stream, to the Mississippi river; and whereas, the said party of the first part is engaged in the business of driving logs down said streams to Beef Slough, for other parties; and whereas, differences having arisen between the party of the second part and the Chippewa Lumber & Boom Company (which is controlled by the party of the first part) in respect to the running and driving of logs: Now, therefore, for the purpose of settling all said differences and providing for the future, it is mutually agreed as follows: First. Said party of the first part, in consideration of the premises and of the promises of the said party of the second part, hereinafter mentioned, agrees to take possession and control of all logs and timber which the party of the second part shall deliver in said Chippewa river at or below the east and west forks thereof, and all that shall be delivered in said Flambeau river at or below the north and south forks of said stream, and to drive the same, at its own cost, charges, and expense, down said streams to and into Beef Slough boom, not exceeding an average of twenty-five millions of feet annually; said logs to be driven each season with all reasonable dispatch, and with as much care and facility as it shall drive its own logs. The logs of the party of the second part now in said streams are to be driven by said first party under this agreement. Any charges to be paid the Chippewa Lumber and Boom Company, or any other company, person, or persons, on account of said logs or any of the same, between the aforesaid forks of said streams and said Beef Slough boom, are to be paid by the said party of the first part. Second. And the said party of the first part, in consideration of the premises, further undertakes and agrees that the charges of the said Beef Slough Boom Company shall not exceed sixty cents per thousand feet for booming, assorting, and delivering in pockets and watching the said logs of the said party of the second part at all the mills on the Chippewa river. Third. And the party of the first part, in consideration of the premises, further undertakes and agrees to brail and deliver to the said second party, in a proper and usual manner, his said logs ready to be taken in tow by boat after the same are turned out into pockets by said Beef Slough Boom Company, and to do the same with all reasonable dispatch. Fourth. And the said party of the second part, in consideration of the premises, promises and agrees to pay to the said party, annually, at the close of each season's business, for taking the care, control, and delivering said logs into Beef Slough boom, as agreed as aforesaid, the sum of two hundred and fifty dollars; and, for brailing and delivering said logs ready for the towboat, twenty-five cents per thousand feet. And said party of the second part also further agrees to return to the said party of the first part the brailing lines used in brailing said logs, unless the same shall have been three times so used. Fifth. In case the said party of the second part associates any person or persons with him as partner or partners in such lumbering business, this agreement is to stand, apply, and operate in respect to such partnership. But no logs are to be handled by said party of the first part under this agreement except such as shall be owned by said party of the second part, or by him and others as partners. The cost of scaling the said logs as the same are turned into said Beef Slough boom is to be paid equally by the parties hereto.

"Witness our hands and seals, this 23d day of August, 1882.

"Mississippi River Logging Co. "F Weyerhauser, Pt. "John Robson,'

'(6) I find that after the date of this contract, and up to April 4, 1889, both parties recognized their contract to be in full force, and the defendant company took charge of and handled all logs delivered to it by plaintiff in accordance with its provisions.

'(7) I find that on April 4, 1889, the defendant company notified the plaintiff, by a letter addressed to him, and received in due course of mail, that it would no longer be bound by said contract, the said letter reading as follows:

"Chippewa Falls, Wis., April 4th, 1889.

"Mr. John Robson, Winona, Minn.-- Dear Sir: You will pleas to take notice that the Mississippi River Logging Company elects to, and does hereby, terminate the contract made with you for driving your logs on the Chippewa and Flambeau rivers in the state of Wisconsin, and for fitting said logs at Beef Slough for transportation down the Mississippi, being the contract bearing date August 23d, 1882, all the provisions of which are hereby terminated, and will not be hereafter considered binding between the parties. If you do not receive your logs at Beef Slough when delivered in the pockets, and fit them for transportation, it will be taken for granted that you elect to have this company act for you in that regard, charging therefor same as for like services done for others.

"Yours respectfully,

Mississippi River Logging Co. "By F. Weyerhauser, Prest.'

'(8) I find that since said 4th day of April, 1889, and as a consequence of the refusal of the defendant company to further handle, drive, or care for the logs owned by the plaintiff for the prices named in the contract, the plaintiff has been compelled to pay larger sums for the performance of the work necessary therefor, such additional payments amounting to 38 1/2 cents per thousand feet, subject to reduction of the $250 per year, the contract price for driving; and I further find that plaintiff paid the sum of $350.27 as an extra charge for brailing in 1889, in addition to the total of 38 1/2 cents increase.

'(9) I further find that at the date of the contract in question, to wit, August 23, 1882, the plaintiff had upon the banks or in the waters of the Flambeau and Chippewa rivers, below the forks thereof, logs and timber to the amount of 14,901,430 feet according to bank scale.

'(10) I find that since the said 23d day of August, 1882, the...