Robson v. Bohn

• Decision Date: 16 March 1876
• Parties: JOHN ROBSON <I>vs.</I> CONRAD BOHN.
• Court: Minnesota Supreme Court

22 Minn. 410

JOHN ROBSON vs. CONRAD BOHN.

Supreme Court of Minnesota.

March 16, 1876.

By a contract in writing made May 19, 1873, the plaintiff agreed to sell and deliver to the defendant 425,000 feet of lumber, at the price of $15.50 per 1,000 feet, the lumber to be delivered at the rate of not less than 20,000 feet per week from the date of the contract until the whole should be delivered, and the defendant agreed to deliver to plaintiff, upon the execution of the contract, his promissory note for $3,000.00, payable July 10, 1873, and to pay him the further sum of $2,000.00 on August 1, 1873, and to pay in full on the full delivery of all the lumber contracted for. On August 1 the plaintiff demanded payment of the $2,000.00, which was refused by the defendant on the ground of plaintiff's failure to deliver according to the contract, whereupon plaintiff refused to deliver any more lumber, and brought this action in the district court for Winona county to recover, at the contract price, for the lumber actually delivered.

The action was referred, and the referee reported a judgment for plaintiff. His report was set aside and a new trial granted by Lord, J., (sitting for the judge of the third district,) and the plaintiff appealed.

Gilman, Clough & Lane, for appellant.

Wilson & Taylor, for respondent.

BERRY, J.

This is an appeal from an order granting a new trial. In assigning reasons for the order, it is said by the court below that the motion for the new trial is made "upon the ground, chiefly, that the findings of fact are against the evidence." Upon that ground, as we understand it, the court below has proceeded in granting the new trial, and in laying down rules of law applicable, not to the facts as found by the referee, but to the somewhat contrary state of facts which, in the opinion of the court below, the evidence in the case tends to establish.

By the terms of the written contract between the parties the plaintiff was bound to furnish at least 200,000 feet of lumber before the 1st day of August. The referee finds, and the plaintiff claims here, that the plaintiff did furnish that amount before that time, thus fulfilling the agreement upon his part up to that date. But the bills made out by plaintiff and handed to defendant, and which, as is shown by the evidence, contain a full account of all the lumber furnished under the contract, do not sustain the referee in his finding. On the contrary, they show that the plaintiff had furnished...