Nelson v. Charles Betcher Lumber Company

• Decision Date: 13 February 1903
• Docket Number: 13,272 - (247)
• Citation: 93 N.W. 661,88 Minn. 517
• Parties: BENJAMIN F. NELSON and Others v. CHARLES BETCHER LUMBER COMPANY
• Court: Minnesota Supreme Court

93 N.W. 661

88 Minn. 517

BENJAMIN F. NELSON and Others v. CHARLES BETCHER LUMBER COMPANY

Nos. 13,272 - (247)

Supreme Court of Minnesota

February 13, 1903

Action in the district court for Goodhue county to recover $4,135.65 and interest, for saw logs sold and delivered to defendant. The case was tried before Williston, J., who found in favor of plaintiff. From an order granting a motion for a new trial, plaintiffs appealed. Affirmed.

SYLLABUS

Arbitration -- Award.

As a general rule, by the submission of a dispute or controversy to arbitration, the parties are deemed to intend the award of the arbitrator to be final and conclusive, whether they expressly so agree or not; but this rule applies more particularly to disputes and controversies in the determination of which the arbitrator exercises both ministerial and judicial functions, and not to cases involving the exercise of ministerial acts alone, such as valuations, calculations, and measurements. As to the latter the decision of the arbitrator is not final or conclusive unless the agreement of submission contains a stipulation to that effect, or an intention to be conclusively bound is fairly inferable therefrom.

Log Scale.

Defendant bought of plaintiffs a quantity of pine saw logs, then in the Mississippi river at Minneapolis, and the parties agreed that the same should be scaled and measured by the surveyor general at the St. Paul boom. There was no stipulation that the scale made by him should be final and conclusive, nor can it be fairly inferred from the agreement between them that the parties intended to be conclusively bound thereby. It is held that the scale made by the surveyor general was prima facie evidence only of its correctness, and was subject to impeachment for mistake without a showing of fraud or bad faith.

Wilson & Vanderlip, for appellants.

Proofs cannot go beyond the averments of the pleadings. It has been expressly held by this court that an answer assailing a scale bill for fraud will not permit proof of mistake. Leighton v. Grant, 20 Minn. 298 (345). How, then, can proof be received of either fraud or mistake, where the accuracy of the scale bill is not questioned in the pleadings? In this case it was necessary for the defendant to allege, as well as to prove, that it was relieved from the obligation of the original contract making the boom scale the criterion of its liability, either by a subsequent contract, or by such conduct on the part of the plaintiffs as would estop them from insisting upon the enforcement of the original contract. Johnson v. Howard, 20 Minn. 322 (370); Michaud v. McGregor, 61 Minn. 198, 203; Potter v Holmes, 65 Minn. 377, 380; Jesmer v. Rines, 37 Minn. 477. The boom scale was conclusive upon the parties. The scaling of logs and lumber is always and wholly a matter of estimate, and is necessarily dependent upon the individual judgment of the scaler. This is recognized and required by the statute, G.S. 1894, § 2398, and by the courts Robinson v. Fiske, 25 Me. 401.

It is impossible that a survey, made by certain scalers at Red Wing, of logs which have been towed down the river from St. Paul, can be competent to impeach a scale made at St. Paul by other scalers, unless the defendant should first, by clear, competent, and satisfactory evidence, prove that gross inaccuracy existed in the St. Paul scale. Vega Steamship Co. v. Consolidated Ele. Co., 75 Minn. 308; Morrison v. Porter, 35 Minn. 425; Minneapolis, St. P. & S.S.M. Ry. Co. v. Chisholm, 55 Minn. 374; Hubbard Specialty Mnfg. Co. v. Minneapolis W.D. Co., 47 Minn. 393, 395.

The boom scale was conclusive upon both parties by the terms of their contract. Boyle v. Musser-Sauntry L., L. & Mnfg. Co., 77 Minn. 206; Leighton v. Grant, supra; Johnson v. Howard, supra; Trainor v. Worman, 33 Minn. 484; Jesmer v. Rines, supra; Itasca Lumber Co. v. Gale, 62 Minn. 356; St. Paul & N.P. Ry. Co. v. Bradbury, 42 Minn. 222; Langdon v. Northfield, 42 Minn. 464; McAvoy v. Long, 13 Ill. 147; Wallace v. Curtiss, 36 Ill. 156; Oakes v. Moore, 24 Me. 214; Robinson v. Fiske, 25 Me. 401; Lynn v. Baltimore, 60 Md. 404; Palmer v. Clarke, 106 Mass. 373. The fact that the contract between the parties did not provide in express terms that the determination of the scale should be final and conclusive, is immaterial. Mansfield v. Veeder, 17 Ohio 385; Mitchell v. Kavanagh, 38 Iowa 286; Robbins v. Clark, 129 Mass. 145; Alexander v. Robertson, 86 Tex. 511; Rens v. City, 73 Mich. 237; McAvoy v. Long, supra; Wallace v. Curtiss, supra; Chapman v. Kansas City, 114 Mo. 542.

The boom scale can only be impeached for fraud or such gross mistake as implies bad faith or a failure to exercise an honest judgment. Shaw v. First Baptist Church, 44 Minn. 22; St. Paul & N.P. Ry. Co. v. Bradbury, supra; Langdon v. Northfield, supra; Trainor v. Worman, supra; Potter v. Holmes, supra; Elliott v. Missouri, 74 F. 707; Chicago, S.F. & C.R. Co. v. Price, 138 U.S. 185, 195; Hot Springs v. Maher, 48 Ark. 522; Chism v. Schipper, 51 N.J.L. 1; Vega Steamship Co. v. Consolidated Ele. Co., supra. However unfair or oppressive the terms of the contract might prove in operation, yet it cannot be evaded or disregarded unless for fraud clearly proved. Snell v. Brown, 71 Ill. 133. See to the same effect Ogden v. U.S., 60 F. 725; Pauly Jail Bldg. & Mnfg. Co. v. Hemphill Co., 62 F. 704; Newman v. U.S., 81 F. 122, 126; Mundy v. Louisville & N. Ry. Co., 67 F. 633.

By the acceptance and use of the logs, defendant waived any right to question the boom scale. Haase v. Nonnemacher, 21 Minn. 486; McCormick v. Kelly, 28 Minn. 135; Maxwell v. Lee, 34 Minn. 511; Thompson v. Libby, 35 Minn. 443; Thompson v. Libby, 36 Minn. 287.

Albert Johnson, for respondent.

If the scalers simply estimated the logs there was no competent scale made and it was proper for defendant to show that fact in defense, as bearing upon the correctness of the scale bill offered by plaintiffs. Pratt v. Ducey, 38 Minn. 517; Douglas v. Leighton, 53 Minn. 176. Scale bills are prima facie evidence only and they may be impeached for fraud or mistake. Leighton v. Grant, 20 Minn. 298 (345); Jesmer v. Rines, 37 Minn. 477; Antill v. Potter, 69 Minn. 192; Boyle v. Musser-Sauntry L., L. & Mnfg. Co., 77 Minn. 206; Vega Steamship Co. v. Consolidated Ele. Co., 75 Minn. 308; Cleveland Iron Mnfg. Co. v. Eastern Ry. Co., 75 Minn. 505.

OPINION

BROWN, J.

Action to recover an unpaid balance of the purchase price of a quantity of pine saw logs sold by plaintiffs to defendant at $13 per thousand feet. The case was tried without a jury, and the court found in favor of plaintiffs. From an order granting defendant's motion for a new trial, plaintiffs appealed.

The facts are substantially as follows: The firm of Walker & Akeley owned a quantity of pine saw logs in the northern part of the state, which were marked by a log mark "crab W." The logs were sold by that firm to plaintiffs, and driven down the Mississippi river to Minneapolis. In August, 1900, defendant applied to Walker & Akeley to purchase a few million feet of logs that were sure to come down the river in September following. Negotiations between them resulted in the purchase by defendant from these plaintiffs, through Walker & Akeley, of a million feet of such logs, with an option on two million feet; and the logs so owned by Walker & Akeley were the subject of this contract. Defendant agreed to pay therefor the sum of $13 per thousand feet, the same to be scaled at the St. Paul Boom by the surveyor general, or his deputy. The arrangement between the parties in reference to determining the quantity of logs delivered was oral, and the result of conversations between plaintiffs and witness Betcher, who represented defendant, a corporation. Plaintiffs wished the logs scaled at Minneapolis; Betcher insisted that they be scaled at the St. Paul boom; and it was finally agreed that they should be scaled in accordance with the latter's wishes. It is the claim of plaintiffs that according to the scale made at the St. Paul boom 1,060,420 feet of logs were actually delivered to defendant. Defendant paid on account thereof the sum of $9,781.39, and this action was brought to recover a balance of $4,135.65.

The answer interposed by defendant admitted the contract for the sale and delivery of the logs, but alleged in defense that not more than 910,940 feet were in fact delivered. At the trial below plaintiffs offered in evidence a scale bill made by the surveyor general, and by that it appeared that 1,060,420 feet of logs were delivered. Defendant offered to prove by a witness who made the scale -- a deputy surveyor -- that the surveyors were unable to scale the logs correctly in the St. Paul boom, and that a considerable portion thereof was estimated, and not measured at all; that all the logs scaled by the surveyor general were delivered to defendant at Red Wing, its place of business, and upon an accurate rescale made at that place only 910,940 feet were in fact delivered. The trial court excluded this evidence on the theory that the scale made by the surveyor general was final and conclusive, except as to fraud or gross inaccuracy, and, as no fraud or gross mistake was shown or offered to be shown, the evidence was incompetent. On further consideration, however, the court concluded that the ruling was erroneous, and granted defendant's motion for a new trial.

The principal question before us is whether the scale made by the surveyor general, and relied upon by plaintiffs, was final and conclusive, except as to fraud or gross mistake. The contention of plaintiffs is that the scale was conclusive and that the evidence offered by defendant for the purpose of showing a mistake, not being accompanied by an offer to show fraud or bad faith...