St. Paul & D. R. Co. v. Blackmar

• Decision Date: 22 November 1890
• Citation: 47 N.W. 172,44 Minn. 514
• Court: Minnesota Supreme Court
• Parties: ST. PAUL & D. R. CO. v BLACKMAR.

44 Minn. 514

47 N.W. 172

ST. PAUL & D. R. CO.vBLACKMAR.

Supreme Court of Minnesota.

Nov. 22, 1890.

(Syllabus by the Court.)

1. It is only where there is doubt as to the meaning of the terms in a written contract, or the writing is silent or incomplete as to a given point, that the court in interpreting the contract will resort to a practical construction which the parties may have put upon it.

2. Certain allegations held not to make a case of estoppel.

3. Upon an application to set aside a judgment, and for leave to answer, the court, even though satisfied with the excuse for the default, need not be content with a formal compliance in the answer with the rules of pleading which a party may follow when answering as matter of right, but may require that in its denials it show the actual extent of the controversy upon the matters denied, as where the denials are of amounts stated in the complaint, and the exact amounts stated are not material.

Appeal from district court, Carlton county; STEARNS and ENSIGN, Judges.

W. E. Hale and J. M. Shaw, for appellant.

W. H. Bliss, (Jackson & Atwater, of counsel,) for respondent.

GILFILLAN, C. J.

The defendant, Blackmar, appeals to this court from an order of the district court denying his motion to set aside a judgment taken by plaintiff against him by default, and for leave to answer. A consideration of the answer and of the complaint is necessary. It appears from the complaint that, March 27, 1883, the plaintiff executed to one Bliss a contract to convey some 20,000 acres of land, the value of which consisted mainly in the timber standing upon it. The money consideration for the agreement to convey was stated at $153,147.63, payable at different dates, according to 20 promissory notes of said Bliss; but the contract stated, as a further consideration, that Bliss was to build and keep in operation a saw-mill capable of sawing not less than 10,000,000 feet board measure per year, and to manufacture at it all pine lumber upon the land, and to transport all the manufactured products of the timber over the plaintiff's road to an amount equal to the amount of the estimates, being 65,645,000 feet, at certain rates for transportation. Upon the payment of all said notes, the last of which was to become due May 1, 1892, and the full performance of all the agreements and stipulations of the contract, the plaintiff was to convey the land to Bliss; but that in case of failure to pay any note for 60 days after it should become due, time being expressly declared to be of the essence of the contract, or failure to perform the other stipulations on the part of Bliss, the contract was, at the election of the plaintiff, to become null and void, without any right on his part to any reclamation or compensation for money paid or improvements made or services rendered. There were a great many other stipulations in the contract which it is unnecessary to mention here. There was a schedule attached to the contract containing descriptions of the lands, and opposite each subdivision a statement of the amount of timber estimated to be upon it, the aggregate being 65,645,000 feet. No effect is given in the contract to these estimates, and they are not referred to in it, except for the purpose of specifying the amount that Bliss was to manufacture and transport over plaintiff's road. May 31, 1884, Bliss, with the consent of the plaintiff, assigned an undivided half-interest in said contract to one Elliott, the latter agreeing to be personally liable for the payment of the consideration. In August,1884, Bliss and Elliott became insolvent, and made an assignment of all their property, including said contract, for the benefit of their creditors. At that time they were largely in default in respect to the payments to be made under the contract. November 24, 1884, pursuant to an order of the district court in which the assignment was filed, the assignee, the assignors, all their creditors, this plaintiff, and defendant, Blackmar, executed a deed, whereby the assignee conveyed and assigned to said defendant all the property assigned by Bliss and Elliott, including said contract, to convey in trust to operate the mill mentioned in said contract; to sell all lumber, lath, and shingles then manufactured at the mill, and out of the proceeds pay all valid labor liens thereon, and pay to plaintiff a sum equal to the stumpage of $2.33 per 1,000 feet on all the logs theretofore cut under said contract, and divide the residue of the proceeds, after paying necessary expenses, among the creditors other than plaintiff; to manufacture at said mill all the logs then on hand, and those cut which could be advantageously driven that fall, and out of the proceeds reimburse the plaintiff for such sums as it may have paid in driving the logs; to continue to carry on the business of cutting and driving logs, and manufacturing and selling lumber therefrom, under the provisions of said contract “except that he shall pay unto said railroad company out of the first proceeds of all sales of lumber a sum equal to a stumpage of $2.33 per thousand feet upon all logs from which such lumber shall have been manufactured, in lieu of the payments provided for in said contract,” and after paying necessary expenses, and reserving a reasonable amount for current and future expenses, distribute the remainder of the proceeds pro rata among the creditors other than plaintiff. There were many other provisions in the deed which need not be specially referred to, as they do not affect the matters complained of. The deed refers to a written proposition made by plaintiff to John De Laittre,...