R. J. Shurtleff v. L. C. Udall

• Decision Date: 03 October 1923
• Parties: R. J. SHURTLEFF ET AL. v. L. C. UDALL
• Court: Vermont Supreme Court

122 A. 465

97 Vt. 156

R. J. SHURTLEFF ET AL. v. L. C. UDALL

Supreme Court of Vermont

October 3, 1923

May Term, 1922.

ACTION OF CONTRACT. Plea, the general issue. Trial by jury at the December Term, 1921, Caledonia County, Willcox, J presiding. Verdict and judgment for the plaintiffs for a portion of their claim. Plaintiff's motion non obstante veredicto overruled. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

Porter Witters & Longmoore for the plaintiffs.

F G. Fleetwood and W. A. Dutton for the defendants.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ. MILES, J., having retired, took no part in the disposition of the case.

OPINION

TAYLOR

The plaintiffs seek to recover a balance claimed to be due from the defendant under a contract for the sale of certain pulp wood. Prior to the date of the contract they had owned jointly a farm in Walden which they had sold to one Robins, taking a mortgage back for $ 2,000 to secure a part of the purchase money. By agreement between the plaintiffs and Robins the latter was to cut from the farm and deliver on the cars 100 cords of peeled pulp for which he was to receive $ 20 per cord to apply on the mortgage, and the plaintiffs had the right to cut an additional 100 cords of pulp wood at an agreed price per cord for stumpage. This arrangement was known to the defendant before his contract with the plaintiffs was executed. The contract in question was in writing and bore date October 2, 1920. The plaintiffs individually are described as one of the parties thereto. In terms the plaintiffs agree to sell and deliver to the defendant "all of the pulp wood they may have for sale during the year 1920 and 1921.

75 to 100 cords of peeled spruce and fir, at $ 24.00 per cord, f. o. b. Dow's or Greensboro Bend, May 1st.

50 to 200 cords of unpeeled spruce and fir, at $ 19.00 per cord, f. o. b. Dow's or Greensboro Bend."

After specifying how the wood was to be prepared and its quality and size, the contract continues: "The wood to be delivered f. o. b. cars and billed to my order during the season 19-- and 19--. The party of the second part agrees to pay to the party of the first part, on or before the 25th of each month for all wood received and accepted during the previous month prepared, delivered and surveyed according to the terms of this contract."

It appeared in evidence that the defendant was a somewhat extensive dealer in pulp wood which he purchased for shipment to various mills; and that at the time the contract was executed the plaintiffs had no other pulp wood than that to be cut from the Robbins' farm, so-called, under the agreement with Robbins mentioned above. Before May 1, 1921, thirteen carloads of pulp wood were delivered on board the cars and accepted by the defendant. It was all shipped billed in the names of the plaintiffs jointly, to consignees directed by the defendant. The bills of lading were delivered to the defendant and were forwarded by him to the consignees. In addition to wood thus received by the defendant, sufficient peeled pulp to make another carload was on the ground at Dow's station ready to be loaded. One of the issues at the trial was whether this wood was delivered before May 1. The jury have found that this wood was ready for shipment within the time specified and was not loaded pursuant to the defendant's directions.

The defendant conceded that all of the pulp wood answered the requirements of the contract. His claim was that a portion of the wood was not owned by the plaintiffs jointly but was the individual property of Shurtleff, which was not received under the contract and for which a recovery could not be had in this action. Before the suit was brought he had paid the plaintiffs by checks drawn to them jointly $ 1,876.47 which covered six carloads then understood by him to be all of the wood received that came from the Robbins' farm. He sent Shurtleff a check drawn to him personally for the remainder of the wood which he had received, valued at the market price of such wood when delivered. This check was returned unused. Aside from the question respecting delivery referred to above, the only issue at the trial below was whether the wood not paid for was covered by the contract. During the trial the defendant conceded that two of the carloads sued for and the wood at Dow's that had not been loaded came from the Robbins' farm and was owned by the plaintiffs jointly.

The questions presented by certain exceptions that are relied upon can be better understood by tracing briefly their development in the course of the trial. Shurtleff had testified that the remaining five carloads were purchased by him elsewhere after the contract was executed to take the place of wood not cut on the Robbins' farm; that when the contract was entered into some of the Robbins' wood was cut and peeled but wasn't cut into four-foot lengths until afterwards, "so we didn't know how much we had." Thereupon the defendant advanced the claim that the contract was a joint contract, that it related only to the wood that the plaintiffs owned or might handle jointly during the time specified, and that Goodrich had no interest in the wood that was bought outside. The court excluded "this line of inquiry" and indicated that the plaintiffs would be held to a recovery for such wood as they owned jointly, and that it should exclude from the consideration of the jury any wood not jointly owned, though shipped under the contract. To this the plaintiffs were allowed an exception. Following this the plaintiffs' evidence showed without contradiction that the defendant had no contract relating to pulp wood with Shurtleff personally; that Goodrich entrusted the entire management of the pulp wood business to Shurtleff; and that by an express understanding between them Shurtleff had full charge of the transaction with the defendant. It was then offered to show that the outside wood was purchased and shipped pursuant to that arrangement. Objection was interposed to any evidence of what Shurtleff did in this regard unless authority from Goodrich to go outside the business relating to the Robbins' farm first appeared. During a somewhat extended discussion the court first ruled that, as the evidence stood, the arrangement testified to by Shurtleff had to do with the wood on the Robbins' farm and that in the present situation it should have to exclude any inquiry as to authority in respect to any other pulp, to which the plaintiffs were allowed an exception. It was later ruled "It is necessary for you to first establish by conclusive proof (afterwards changed to satisfactory proof) that Mr. Goodrich assented to that proposition and until you can establish that we shall exclude any testimony in respect to any other wood.--There is no proof now as the court sees it." To these rulings the plaintiffs had an exception. Subsequently, it was shown, and not contradicted, that Goodrich knew Shurtleff was buying the outside wood, that he was using "joint money" for that purpose, and that he made no objection. Thereupon the pending question and offer were renewed and again excluded, the court holding that the proof as to authority "does not comply with the law." To this ruling the plaintiffs excepted. As indicating wherein the court regarded the proof of authority as being short, our attention is called to the following statement made during the discussion: "You can't show it by this witness (Shurtleff) in the method you have been offering to show it. He can't testify in his favor at this time to establish this relationship. It must be shown by some other way." Later counsel for the defendant indorsed this view by objecting to the testimony of Shurtleff tending to show authority from Goodrich "on the ground that such testimony is self-serving, and the agency cannot be established in that way." Plaintiffs brief this group of exceptions as an exception to the refusal of the court to permit them to show that Shurtleff bought the pulp wood shipped to the defendant with the firm's money. But as seen, that was not the point of the exceptions, and the plaintiffs have by their brief limited the review to a claim that is untenable.

In addition to what already appears plaintiffs' evidence tended to show that the profits of the pulp wood deal were shared equally, but that there was no arrangement as to the division of losses. It also appeared that the proceeds of the checks sent the plaintiffs jointly had been divided equally between them. At the close of the plaintiffs' opening case the court indicated that the only question it would submit to the jury was whether the plaintiffs ought to recover pay for the wood at Dow's station. Plaintiffs insisted that they were entitled to recover their entire claim and to go to the jury on their claim for outside wood. The court announced that it would hold and so instruct the jury that they should not take into consideration the wood purchased outside the Robbins' farm. The plaintiffs saved an exception to this ruling. As indicated, the court charged the jury not to consider in arriving at their verdict anything relating to the outside wood, thus limiting the recovery to the wood cut on the Robbins' farm. They...