Paine v. Sherwood

• Decision Date: 01 January 1874
• Parties: J. M. PAINE & Co. v. SHERWOOD & SEWALL.
• Court: Minnesota Supreme Court

19 Minn. 270

J. M. PAINE & Co.

v. SHERWOOD & SEWALL.

Supreme Court of Minnesota.

Appeal by defendants from an order of the court of common pleas, Ramsey county, denying a new trial.

Brisbin & Palmer, for appellants.

H. J. Horn, for respondents.

BERRY, J.

This is an action for lumber and other goods sold and delivered, and for services rendered by plaintiffs to defendants.

The answer sets up that the lumber, for which plaintiffs seek to recover, was furnished under a written contract entered into between the parties, in the words and figures following, to-wit:

                                      "ST. PAUL, December 2, 1870
                

"We agree to furnish Sherwood & Sewall with lumber for three bridges on the Northern Pacific railroad, at $14 per M., to be delivered either on the cars or at some convenient place for framing near our mill; said lumber to be white pine, of good quality, fully edged, and absolutely free from wane and perfectly sound; to be sawed of full size and length, but the size not to exceed the required dimensions more than enough to smooth it; and if any of said timber shall be rejected by said Sherwood & Sewall, or by the engineer of said railroad, as not complying with the above specification, we agree to replace such rejected pieces without cost to said Sherwood & Sewall, the timber on the different bills to be kept separate and the whole delivered, if required, in five weeks, and one span in three weeks, payable within 10 days after delivery.

                   "December 3, 1870
                                                 "J. M. PAINE & CO
                                                 "SHERWOOD & SEWALL."
                

As one defense the answer proceeds to allege that defendants "required of said plaintiffs the delivery of the whole timber for said three bridges in five weeks from said December 3, 1870, and repeatedly urged such delivery during said month of December, 1870, but that said plaintiffs did not deliver all said timber, required as aforesaid, within the time provided in said contract, but neglected and refused so to do, and have never delivered the same, or fulfilled said contract on their part, (to the damage of said defendants, as hereinafter stated,) and are not entitled * * * to recover the price or value of said timber, or any part thereof."

For a second defense the answer alleges that prior to entering into the contract aforesaid defendants had contracted with the Northwestern Construction Company to construct three bridges, mentioned in the contract aforesaid, and "to have said bridges built and fully completed on or before March 1, 1871, all which was known to said plaintiffs at and prior to the making of said contract with defendants; and it was essential, and so known to plaintiffs, that said timber should be furnished to defendants at and within the time referred to in their said contract with plaintiffs, in order that defendants might be able to complete their contract with said construction company;" that plaintiffs, although often requested so to do, furnished less than half of the quantity of lumber necessary for said bridges, and did not furnish the amount so furnished within the time provided by the contract aforesaid, but that a great part of such amount was not furnished until on or about March 1, 1871; "that in consequence of the failure of the plaintiffs to perform their said contract * * * defendants were compelled to and did employ a great number of men to go into the woods" and cut, hew, and square by hand, and haul the timber necessary for said bridges, the cost of which cutting, hewing, and squaring was $251. Defendants call this their first counter-claim. That subsequently, and in March, 1871, plaintiffs having refused and neglected to furnish defendants with other timber necessary for said bridges, defendants "were compelled to and did employ men and teams to cut, hew, whipsaw, and haul" such timber, and in so doing necessarily expended $1,181.80. This constitutes what defendants call their second counter-claim. That a large number of pieces of timber furnished by said plaintiffs were rejected by the engineer referred to in the contract aforesaid, and were ordered to be taken out of one of the bridges, and were taken out by defendants as rejected pieces at an expense of $45. This is defendants' third counter-claim.

Defendants' fourth counter-claim, which was allowed in the verdict under the instructions of the court, was for the alleged loss of the time of their employes in consequence, as their answer claims, of plaintiffs' failure to perform their contract aforesaid.

The reply admits that a portion of the lumber sued for was furnished under the contract set up in the answer, and alleges that defendants never required the whole of the lumber for the bridges within the five weeks, or otherwise, or for one span within three weeks, or otherwise, or furnished the plaintiffs with bills, or the requisite particulars or information to enable them to furnish the whole amount of lumber for said bridges; and further alleges that plaintiffs have always been willing and ready to comply with the contract aforesaid. It is also averred in the reply that on or about March 1, 1871, defendants agreed with plaintiffs that in consideration that plaintiffs would run their mill exclusively for sawing lumber for defendants for two or three days or thereabouts, as defendants might require, the defendants would not require plaintiffs to furnish any more lumber under the contract aforesaid, and would release plaintiffs from any other or further performance thereof; and said plaintiffs, in consideration thereof, run their mill exclusively for sawing lumber for said defendants for the time by them required, and defendants released plaintiffs from all further and other performance of the contract aforesaid, and finished said bridges without requiring of plaintiffs any lumber therefor.

The reply denies all knowledge as to whether defendants had contracted with the Northwestern Construction Company, as stated in their answer, or otherwise, and also denies generally the matters set up in the answer by way of counter-claim, as aforesaid.

Defendants' first point upon their brief is that "the court erred in allowing oral testimony until the written contract had been put in evidence." As the oral testimony objected to related exclusively to items of lumber, etc., not embraced in the written contract, we see no reason why the objection should have been sustained.

J. M. Paine, one of the plaintiffs, having testified that plaintiffs had sawed some 10,000 to 15,000 feet of common lumber for defendants, outside of said written contract, but that he could not recollect the exact items, produced a memorandum, or paper, being a bill of parcels in ordinary form, containing some 20 items of lumber, etc., with dates, quantities, and prices, as usual in such cases. The witness testified concerning the same as follows: "I have memorandum made under my direction about March 1, 1871, immediately after the transaction. The bill was made out for lumber we furnished. The object of making out the memorandum was to show our account; it was made by our clerk under my direction. I can state some items without looking at memorandum. The memorandum was made out under my observation and was correct at the time. I recollect furnishing at one time 2,000 feet of plank. They were furnished and charged at the price we were selling at, $13."

Plaintiffs' counsel requested that the witness might be permitted to inspect the memorandum for the purpose of refreshing his memory. Defendants objected to the use of the memorandum by the witness to refresh his recollection, or to read from the same the items, or any of them, therein appearing, "as no foundation had been laid therefor, and as hearsay." The objection was overruled, and the witness was permitted to read, and did read, from the memorandum to the jury all the items therein contained, except the item for lumber for the bridges aforesaid. Defendants insist that this was wrong because the memorandum was not such as could be used by the witness for the purpose of refreshing his memory, or of reading its contents to the jury, and because no proper foundation was laid to authorize its use.

Inasmuch as the case comes up here upon a bill of exceptions, (which does not purport to contain all the evidence received below,) it does not appear that a sufficient foundation was not laid for the use of the memorandum for the purpose of refreshing the memory of the witness. For this purpose it was not necessary that the memorandum should be an original document, nor that it should have been made by the witness. 1 Greenl. Ev. § 436. But we are unable to discover any ground upon which the court was justified in permitting it to be read to the jury. In the first place, the witness testifies that he is able "to state some items without looking at memorandum," so that, as to those items, there would appear to be no occasion whatever for allowing the memorandum (even if it were otherwise unobjectionable) to be read to the jury. In the second place, the fair inference from the examination in chief, independent of the cross-examination, is that the memorandum was not an original document. If so, it was certainly not admissible until the absence of the original was satisfactorily accounted for by proof of the inability of plaintiffs to produce it on account of its loss, destruction, or otherwise. And although as to...