Poler v. Mitchell

• Decision Date: 11 March 1913
• Citation: 140 N.W. 330,152 Wis. 583
• Parties: POLER ET AL. v. MITCHELL.
• Court: Wisconsin Supreme Court

152 Wis. 583

140 N.W. 330

POLER ET AL.

v.MITCHELL.

Supreme Court of Wisconsin.

March 11, 1913.

Appeal from Circuit Court, Marathon County; A. H. Reid, Judge.

Action by James D. Poler and another against James Mitchell. Judgment for plaintiffs; defendant appeals. Modified and affirmed.

Action to recover balance of purchase price for logs sold and delivered to the defendant. The complaint alleged that some time in January, 1910, the plaintiffs entered into an oral contract with the defendant to sell to him a certain quantity of basswood, elm, birch, and pine logs, at certain agreed prices, except as to elm, and to deliver the same at the sawmill of one George McNinch; that, pursuant to such contract, they delivered at said mill for the defendant 203,533 feet, which, under such alleged contract, amounted to $2,602.19; that due demand was made upon the defendant for the payment of this sum, but none thereof was paid, except $1,427, and judgment was prayed for the balance of $1,175.19, with interest and costs of the action.

The defendant alleged that the terms of the oral contract were not as claimed by the plaintiffs; that he contracted to pay for the timber different prices from those which they claimed he agreed to pay; that the total amount of various timber landed at the mill was only 141,655 feet; that the final delivery of the logs, after the same had been sawed into lumber at the mill, was agreed by the plaintiffs to be made at Elcho, and not at the sawmill of McNinch; and that because of plaintiffs' refusal to haul the lumber manufactured from said logs from the mill to Elcho he was compelled to haul the same at an expense of $750, for which sum, by way of counterclaim, he demanded judgment against the plaintiffs.

The jury returned the following special verdict: (1) That the contract between the plaintiffs and the defendant was that they should sell to him and make completed delivery at McNinch's mill of their pine logs for the price of $15 per thousand, their birch logs for $13 per thousand, and their basswood logs for $14 per thousand, log scale; (2) that the quantity in log scale of each of the following kinds of plaintiffs' logs landed at McNinch's mill was there sawed for the defendant, viz., pine logs, 38,156 feet, birch logs, 14,276, basswood logs, 105,886, and elm logs, 18,957; (3) that the reasonable market value of elm logs of the grade of those delivered by plaintiffs to defendant, while the same were at McNinch's mill in March, 1910, was $9 per thousand; and (4) that it was not the contract between plaintiffs and defendant that the former should, for the price of $16 per thousand feet, log scale, for pine, $14 per thousand feet, log scale, for birch, $15 per thousand feet, log scale, for basswood, sell their logs to defendant, haul the same to McNinch's mill to be sawed, and take the lumber from the mill and deliver the same to defendant at Elcho.

The court gave the plaintiffs the option of a new trial or judgment for 10 per cent. less than the amount of timber found by the jury. The plaintiffs accepted the latter, and judgment was entered upon the verdict as so amended. From such judgment, the defendant appealed.Goodrick & Goodrick, of Antigo, for appellant.

H. F. Morson, of Antigo, for respondents.

VINJE, J. (after stating the facts as above).

[1] Two disputed questions of fact arise upon this appeal, namely, the place of delivery of the logs and the amount delivered. Plaintiffs claim the contract called for delivery at McNinch's mill, while defendant's contention is that the logs were to be delivered by plaintiffs at the mill, were then to be sawed and the lumber piled by plaintiffs, and then hauled by them from the mill to the railroad at Elcho, distant about nine miles from the mill. The contract was an oral one, and there is a direct conflict in the testimony of the parties as to place of delivery. As circumstances tending to corroborate the defendant's claim, our attention is directed to the fact that logs sold for considerably less at Elcho, and that it is unreasonable to suppose an experienced lumberman like the defendant would pay $4 or $5 per thousand more for logs at the mill than he could buy them for at the railroad at Elcho. Plaintiffs' answer to this is that defendant was getting a select grade of logs, called “veneer logs,” and that they were worth much more than the average run of logs. The evidence as to the grade of logs received by the defendant sustains plaintiffs' claim. A number of other corroborating circumstances are adduced by both parties to strengthen their respective versions of the contract. But the above is sufficient to show their general nature and the total variance of the evidence as to place...