Shores Lumber Co. v. Stitt
| Citation | 78 N.W. 562,102 Wis. 450 |
| Parties | SHORES LUMBER CO. v. STITT ET AL. |
| Decision Date | 14 March 1899 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from circuit court, Ashland county; John K. Parish, Judge.
Action by the Shores Lumber Company against Joseph Stitt and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.
Action for damages for breach of contract and to recover for the use of the right of way of a railroad. The case was tried by a referee who found the facts as to the various claims for damages, and for the use of the railroad right of way, in favor of the defendants, and found that there was a sum of money due the defendants on counterclaims pleaded by them, which findings were approved by the trial court, and in accordance with which judgment was rendered.
The evidence in the case is very voluminous and the findings of fact numerous. To give a complete history of the cause would require a very long statement. Only such statement will be made as appears to be necessary to present the controverted questions of law and fact as they appear in this court.
The contract called for the cutting, hauling and delivering of 35,000,000 feet of logs per year for several years. The referee found that the contracts were modified by parol as to the annual amount to be delivered. Damages were claimed for failure to deliver 35,000,000 feet of logs per year, but were disallowed because of the parol modification mentioned. The fact as to the modification is controverted on this appeal on proper exceptions to the findings.
As a part of the transactions between plaintiff and defendants in making the logging contracts, it was agreed that the latter should purchase of the former a logging railroad and its equipment. The transaction in that regard was consummated by a written bill of sale, which contained no other description of the railroad property except the following: “One locomotive, eighteen cars, and all their rail and railroad material of every name and nature.” At the time the bill of sale was made there was a logging railroad 4 1/2 miles long, equipped with a locomotive, rails and cars, constructed for use, and in use in carrying on logging operations to stock plaintiff's sawmill, which it was designed defendants should continue, and which they agreed to do as a part of the transaction which called for such bill of sale. After the making of such bill of sale the entire railroad property was delivered to defendants and no claim was made that any interest therein was retained by plaintiff till after the contract relations between the parties had ceased. As an inducement to defendants to purchase the railroad property, plaintiff represented to defendants that there would be an opportunity for them to haul outside logs at a profit. The claim in suit was that the right of way of the railroad was not sold and that plaintiff was entitled to compensation for the use of it in hauling outside logs. The referee found that the entire railroad property was conveyed to defendants, and that plaintiff was estopped from claiming otherwise because of the representations made before the sale, that defendants would be enabled to use the property profitably for hauling outside logs. Exceptions were duly filed to the court's findings in regard to these matters.
The contract required the logs to be cut in a workmanlike manner. A large claim for damages was made for waste of timber by the defendants in cutting the trees too high. Plaintiff claimed that the customary way of cutting timber in Michigan was in contemplation by the parties when the contracts were made, which was to cut the trees down lower than was customary where the logging operations in question were performed. That was denied by the defendants. The court held that the place of the performance of the contract, being in the vicinity of Chequamegon Bay, Bayfield county, the customary way of cutting timber there governed, and that the work under the contracts was done in a workmanlike manner tested by the usual method of cutting timber in that locality; that as operations progressed, trees that were considered by plaintiff's employés to be cut too high were designated by them and the loss determined and charged to defendants. Exceptions were taken to the findings and conclusions of the court in respect to this claim for damages. So, as the case stands in this court, appellant claims that the findings of fact should be modified so as to award to it damages for failure to deliver 35,000,000 feet of logs per year, compensation for use of the railroad right of way, and for the loss of timber by...
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...of judging such work in the community of the performance. Fitzgerald v. La Porte, 64 Ark. 34, 40 S.W. 261. See, also, Shores Lbr. Co. v. Stitt, 102 Wis. 450, 78 N.W. 562; Aughinbaugh v. Coppenhaffer, 55 Pa. (5 P.F. 347; Smith v. Clark, 58 Mo. 145; Somerby v. Tappan, Wright (Ohio) 229. And t......
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