Montreal River Lumber Co. v. Mihills

• Decision Date: 17 November 1891
• Citation: 80 Wis. 540,50 N.W. 507
• Parties: MONTREAL RIVER LUMBER CO. v. MIHILLS ET AL.
• Court: Wisconsin Supreme Court

80 Wis. 540

50 N.W. 507

MONTREAL RIVER LUMBER CO.

v.MIHILLS ET AL.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Dane county; R. G. SIEBECKER, Judge. Reversed.

Action by the Montreal River Lumber Company against Dorlon Mihills, Samuel Manson, E. H. Wilder, F. J. Collins, and J. E. Ingraham. Defendants alleged false representations, and set up a counter-claim for damages. Judgment for defendants. Plaintiff appeals.

The other facts fully appear in the following statement by CASSODAY, J.:

It is undisputed that during the times mentioned the plaintiff was a corporation at Hurley, Wis., and had a mill about three miles distant from that place, at Gile, which was completed in May, 1888, and also had a large quantity of pine timber lying upon the west branch of the Montreal river and on the Potato river, in the vicinity of said mill; that Alexander Stewart, of Wausau, was the treasurer of said corporation; that James McCrossin was the general manager of said corporation; that one Gilles was the book-keeper of said corporation, and one McAllister was the clerk and book-keeper of said corporation, during the times mentioned; that the defendants Dorlon Mibills and Samuel Manson formed a partnership in 1887, under the firm name of Mihills & Manson, and opened an office in Madison, for the purpose of buying at the mills and selling throughout the country, upon commission, lumber in car-load lots, keeping no yard of their own; that both were experienced in buying and handling lumber in large quantities; that in October, 1888, Mihills & Manson purchased of the plaintiff all of its manufacture of inch lumber, common and piece stuff, mill run, which had not been previously disposed of or used by the plaintiff, being 3,866,092 feet; that May 1, 1889, they still had on hand of that lumber 1,617,869 feet; that the plaintiff manufactured at said mill, between October 29, 1888, and March 29, 1889, about 6,000,000 feet of lumber, which was, at said last-mentioned date, piled in the yard at said mill; that about March 24, 1889, the said Mihills and McCrossin commenced negotiations for the purchase of the lumber so in said yard, and certain other lumber then in logs and thereafter to be manufactured at said mill, and continued such negotiations until the making of the contract hereinafter mentioned; that April 6, 1889, the defendants Wilder, Collins, and Ingraham, of Evansville, entered into a copartnership under the firm name of Wilder, Collins & Co., to endure for one year, for the purpose of joining with the firm of Mihills & Manson in said proposed purchase from the plaintiff; that the result of such negotiation was that April 10, 1889, the plaintiff, as party of the first part, entered into an agreement in writing with said two firms, as parties of the second part, for such purchase.

This action was commenced October 8, 1890, to recover $41,258.50, alleged to be the balance due the plaintiff for lumber sold and delivered by it to the defendants under and by virtue of said written contract, wherein and whereby the plaintiff sold to the defendants all the product of its said saw-mill at Gile, cut and to be cut from all the logs put in by it during the logging season of 1888-89, being about 18,000,000 feet, more or less, board measure. Said lumber and the mill product was thereby sold at the following list prices, to-wit: All the lumber, including timbers, etc., (mill culls excepted,) at $15 per 1,000 feet, board measure; mill culls, $5.15 per 1,000 feet; star A star shingles, $2.10 per thousand; “5-inch clear shingles,” so called, $1.16 per thousand; lath, $1.15 per thousand; “No. 1 shingles,” so called, 50 cents per thousand; flat pickets, select and clear, $8.50 per thousand; square pickets, select and clear, $8 per thousand; No. 2 pickets, flat and square, $6 per thousand,--all of the above in the rough, on cars at the mill-yard at Gile, the defendants having the privilege of loading on the cars or bringing to the plaining-mill the above product, in which case they were to receive remuneration as therein specified. The plaintiff thereby agreed, in effect, to manufacture and put the above product in the pile in a good, workman-like manner, and in the main as it had been doing theretofore; stipulated, however, that the defendants might give directions, from time to time, which were to be carried out so long as they did not damage the interests of the plaintiff. In consideration of the agreements of the plaintiff, the defendants therein agreed, in effect, to load out the product, and pay for the same, as follows, to-wit: All the factory lumber, otherwise known as flat, shop, common, and better. The defendants were to commence shipping on May 15, 1889, and to pay in full, for all shipped every 15 days, for the product shipped during the preceding 15 days, at the rate of $20 per 1,000 feet, and were to continue shipping at the rate of not less than 50,000 feet per day. That all the balance of the lumber and pickets not described in the preceding paragraph the defendants should begin to ship from the yard by May 15, 1889, and to continue such shipment from day to day, and should have 60 days' time on said lumber and pickets, and should be allowed a discount of 2 per cent. for cash in 10 days; every car-load of lumber to be paid for in this manner from the time of shipment, at the rate of $10 per thousand feet. That all the lumber sawed after the then present season should be paid for as above set forth, at the same rate as previously mentioned. That all the lumber that was sawed by the plaintiff up to October 1, 1889, should be shipped by May 1, 1890, and all the lumber sawed after October 1, 1889, should be shipped by July 1, 1890. That the shingles and lath then in stock should be paid for in cash, net, 30 days from the date of said contract; and on the last day of each and every month an estimate should be made of the amount of shingles, lath, and pickets in stock at the plaintiff's yard, and for which the defendants were to pay net, in 30 days from the time of each estimate, and so on for the whole season, until the cut should be completed. That, in case the defendants desired any of said lumber planed, the plaintiff was to plane it at the same price or prices as was paid for the previous season by Mihills & Manson for the same work, the defendants agreeing to bring such lumber as they desired planed to the planing-mill, and the plaintiff to place said lumber, when planed, on the car platform or in shed, as the defendants might direct. That the plaintiff further agreed, in effect, to furnish the defendants the lumber wagons and tools without cost, for the purpose of loading said lumber in said yard, on the express conditions, however, that the defendants should leave said lumber wagons and tools in as good condition as they were at the time of making the contract, reasonable use and wear thereof only excepted. That as fast as said lumber was taken from the piles the said parties each were to have a man or men to measure the same, and to compare their measurements at that time, and to decide on the amount, which should be final. That the prices--$20 per thousand, and $10 per thousand--were set forth in the agreement, so that the value of each board as shipped might be determined at the time; but it was expressly understood and agreed that when the final settlement should be made it was to be made on the basis set forth in the forepart of said contract.

It is conceded that the plaintiff would be entitled to recover the amount thus claimed were it not for the false representations alleged in the answers. The respective answers of Mihills & Manson and Wilder, Collins & Co. consisted of admissions and denials, and also alleged by way of defense, and also by way of counterclaim, in effect, that prior to the execution of said contract about 6,000,000 feet of the amount of lumber and timber covered by said contract had already been sawed, and was piled in the yard of the plaintiff at Gile; that the logs out of which the balance of said lumber was to be cut were in the woods and on the river above said yard; that, as an inducement to the defendants to enter into said contract, the agents and officers of the plaintiff, intending thereby to deceive and defraud the defendants, (1) falsely and fraudulently represented to the defendants that the proportion of “shop lumber,” so called, then sawed and in the said yard, consisted of what was termed “flat common lumber and better,” being 1 1/4, 1 1/2, and 2 inches thick, and would average about 65 per cent. of the whole amount of lumber then cut and piled in said yard, being about 6,000,000 feet as aforesaid; (2) that not to exceed 5 per cent. of said shop lumber was what was called “flat common;” (3) that there were no culls piled in with said shop lumber; (4) that the logs mentioned in said contract to be sawed and manufactured into lumber would run as good or better than said 6,000,000 feet of lumber then piled in the yard; (5) that the said logs would run and work up into manufactured lumber and timber, so as to be a dollar a thousand better in quality than the cut of the previous year; that all and singular the representations above mentioned were false and fraudulent, and were known to be so by the officers and agents of the plaintiff; that the said lumber then piled in said yard did not average 65 per cent. shop lumber, being flat common and better, nor did the said shop lumber average only 5 per cent. of what was called “flat common lumber,” but there was a much smaller average or proportion of what is called “shop lumber” in said pile so cut in said yard, and a much greater proportion of what is called “flat common” than 5 per centum thereof; that there was a large amount of culls piled in with said shop lumber; that said logs then uncut did not run or average as good or better than said lumber so piled in said yard, nor as good as the...