Rollins v. St. Paul Lumber Co.

• Decision Date: 11 July 1874
• Citation: 21 Minn. 5
• Parties: JOHN ROLLINS <I>vs.</I> ST. PAUL LUMBER COMPANY.
• Court: Minnesota Supreme Court

21 Minn. 5

JOHN ROLLINS vs. ST. PAUL LUMBER COMPANY.

Supreme Court of Minnesota.

July 11, 1874.

The complaint alleges that on March 4, 1872, the plaintiff contracted with the defendant to drive certain logs of defendant from the Mike Drew Brook, so called, into the Anoka Boom, for which defendant agreed to pay him at the rate of one dollar and twenty cents per thousand feet, to be paid in full when the logs were in the boom; that the plaintiff drove about 360,000 feet of said logs into the boom in July, 1872, and the further amount of about 863,000 feet in June, 1873, in all 1,292,979 feet; that the defendant has not paid for said driving, nor any part thereof. The answer denies every allegation of the complaint, not expressly admitted, admits that on March 4, 1872, the parties entered into a contract for the driving, by plaintiff, of the logs mentioned in the complaint, at the price therein stated, alleges that the contract was to be entirely performed by plaintiff in the driving season, so called, of 1872, denies that plaintiff drove any of said logs into the boom in 1872, and alleges that on July 24, 1872, the plaintiff, having driven 378,538 feet of said logs a portion of the distance to the boom, refused, without excuse, to drive them farther, and never at any time drove them into the boom. The answer admits that, during the driving season of 1873, the plaintiff drove the balance of said logs, to wit, 844,441 feet, and no more, from said Mike Drew Brook into the Anoka Boom, and that such driving was reasonably worth the price per thousand feet named in the contract.

At the trial in the district court for Hennepin county, before Vanderburgh, J., the plaintiff introduced in evidence a written contract, signed by both parties, by which the plaintiff agreed to drive all logs of the defendant, banked on Mike Drew Brook, from the Mike Drew Brook to the Anoka Boom, at the rate of one dollar and twenty cents per thousand feet, payable in instalments, the last instalment being payable when the logs were in the boom. The contract further provided that the defendant might put two men of their own selection upon the drive. It was silent as to the time within which the logs should be driven. The plaintiff also introduced oral evidence tending to prove performance on his part, and that the logs mentioned in the complaint were driven under the written contract. There was no evidence of any other contract between the parties. At the close of plaintiff's case, the defendant moved that the action be dismissed for failure of the complaint to state a cause of action, and for failure of the plaintiff to prove the cause of action alleged in the complaint. The motion was denied, and defendant excepted. The defendant then introduced evidence tending to prove that plaintiff had not performed the contract, and had never driven into the boom the logs alleged in the complaint to have been driven in 1872; but that, having driven them part of the distance, he had abandoned the contract and refused to perform it. The court charged the jury as stated in the opinion, and the defendant excepted. A verdict was rendered for the plaintiff, for the full amount claimed by him, a motion for a new trial was denied, and the defendant appealed.

U. L. Lamprey, for appe...