Mueller v. Cook

• Decision Date: 09 January 1906
• Citation: 126 Wis. 504,105 N.W. 1054
• Parties: MUELLER ET AL. v. COOK ET AL.
• Court: Wisconsin Supreme Court

126 Wis. 504

105 N.W. 1054

MUELLER ET AL.

v.COOK ET AL.

Supreme Court of Wisconsin.

Jan. 9, 1906.

Appeal from Superior Court, Douglas County; C. Smith, Judge.

Action by Frank W. Mueller and others against Wirt H. Cook and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Complaint in Substance.

December 10th, 1900, defendants conveyed the pine timber, estimated at 3,774,340 feet, suitable for saw logs on lands in Carlton county, Minnesota, for $24,000, and promise of a contract to log the same and put the logs on cars on the Eastern Railway of Minnesota during the logging seasons of 1901 and 1902 and 1902 and 1903 for $3 per thousand feet, plaintiffs furnishing the wrapping chains necessary for the safe loading of such logs. A contract was accordingly entered into between the parties which provided, among other things, that defendants should do the work agreed upon during the first of the logging seasons mentioned, unless notified by plaintiffs prior to July 1st, 1901, that they desired the same done the succeeding season. The only practicable way of transporting the logs to plaintiffs' mills, which the parties contemplated doing, was by means of said railway. Prior to November 11th, 1902, because of the arbitrary conduct of the railway company, plaintiffs were unable to make a practicable arrangement for the shipment of the logs, but on such date they did so and immediately notified defendants thereof requesting them to proceed with the work, which they peremptorily refused to do, whereby plaintiffs were compelled to employ another person to do such work, paying $4, per thousand feet, to their damage in the sum of $3,773.34. For that they demanded judgment with interest from April 8th, 1903, with costs.

Answer in Substance.

The selling of the timber and making of the contract is admitted. After such making plaintiffs requested defendants from time to time not to commence logging operations because the former were unable to make satisfactory arrangements with the railway company for transporting the logs, and they did not wish such operations commenced until such arrangements were perfected. The economical cutting of the timber and handling of the logs under the contract required work to be commenced on or about September 10th, 1902. About August 28th of such year plaintiffs notified defendants that they had not yet made satisfactory arrangements with the railway company and not to commence logging operations until such arrangements could be made. August 29th thereafter they informed plaintiffs that if the latter desired the timber put in as agreed upon they must give notice thereof by the 10th of September following: Plaintiffs refused and neglected to give such notice, and refused to allow defendants to proceed with the logging operations prior to November 11th, 1902, at which time the season was too far advanced to permit of such operations being commenced and the timber put in without large extra cost over what would have been necessary had they been permitted to commence work as per contract, for which reason they declined to enter upon the work as requested. The logging of the timber after November 11th, 1902, as alleged, is admitted.

At the close of the evidence the defendants moved the court for a verdict in their favor upon the ground that the evidence conclusively showed that plaintiffs were not entitled to recover. The motion was granted and judgment rendered accordingly.H. V. Gard, for appellants.

Ross & Dwyer, for respondents.

MARSHALL, J. (after stating the facts).

Many questions are discussed in the briefs of counsel which do not need more than a passing notice, if even that, as we view the case. On the record there are, at the most, two ruling propositions of law. Strictly speaking, there is but one. The other is significant only in that it renders the theory upon which the verdict was directed, and in opposition to which the learned counsel for appellants invites consideration of the many phases of the law regarding rescission of contracts, inapplicable. The second proposition is one which does not seem to have attracted the attention of counsel upon either side or of the trial court.

The complaint by appropriate allegations states that the parties made a verbal contract, which in its entirety called for the payment of $24,000, by appellants to respondents for certain pine timber land, and a written agreement obligating the latter to log the timber and place the manufactured product in the form of saw logs on cars of the Eastern Railway of Minnesota for $3, per thousand feet, $20,000, of the $24,000, to be considered as the real purchase price of the land,--the price thereof independent of the logging feature,--and $4,000, as an equivalent for the opportunity to have the timber handled as indicated at $3, per thousand feet; that in part execution of such entire verbal contract, as to one feature the land was deeded to appellants, they paying the $24,000, agreed upon, which though named in the writing, in form, as the consideration therefor, measured the sale price of the land and the agreed advantage to appellants of having the timber handled as and at the price aforesaid; and that the verbal contract was further in part executed by the making of the stipulated agreement as to the timber.

Now if the amount named in the deed was the real consideration therefor, by itself, then at the time of the alleged breach of the logging agreement, it was wholly executory. If, however, the sum of $4,000, of the $24,000, named in the deed was paid respondents for the opportunity to have the timber logged and the logs put upon cars as aforesaid for $3.00 per thousand feet, then the logging agreement as part of the entire transaction was not wholly executory at the time of the supposed rescission....