Stubbings v. McGregor

• Decision Date: 17 October 1893
• Citation: 56 N.W. 641,86 Wis. 248
• Parties: STUBBINGS v. MCGREGOR ET AL.
• Court: Wisconsin Supreme Court

86 Wis. 248

56 N.W. 641

STUBBINGS

v.MCGREGOR ET AL.

Supreme Court of Wisconsin.

Oct. 17, 1893.

Appeal from circuit court, Oneida county; J. K. Parish, Judge.

Action by W. H. Stubbings against McGregor Bros., a copartnership, and T. Roberts, for injunction, etc. Judgment for plaintiff. Defendants appeal. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

The plaintiff and defendants entered into a written agreement April 23, 1890, by which the former bargained and sold to the latter “all the lumber belonging to him now in pile at the mill of E. K. Buttrick, in Rhinelander, Wis., excepting culls in pile, and excepting timber. * * * All to be delivered and shipped on or before September 15, 1890; the quantity of said lumber to be ascertained by estimating the same in the piles where the same is now piled.” Each party was to choose one person to estimate the lumber, and they were to estimate it immediately, and if they could not agree the two persons should choose a third person, and a majority of the three were to make the estimate, “and the estimate thus made, either by the two or the three persons, shall be conclusive and binding upon the parties.” The defendants were to pay $11 a thousand for such lumber, according to the estimate thus provided for. Alexander McPhail and Thomas E. Strange were chosen, as provided, to make the estimate, and they agreed that the amount of the lumber was 2,974,000 feet. The plaintiff, being dissatisfied, commenced this action to restrain the defendants from further interfering with the lumber, and for a judgment declaring the amount of the lumber in question, and for general relief, alleging that, through fraud or gross mistake on the part of the estimators, a large amount of said lumber which the defendants were to take and pay for had not been estimated at all; that through such fraud, collusion, or gross mistake, the plaintiff would, by said estimate, if allowed to stand, get no pay for over 330,000 feet of lumber sold at $11 per thousand; that the defendants had shipped between 300,000 and 400,000 feet of the lumber sold to various points; that the plaintiff, immediately after the estimate was made, notified the defendants that the estimate was wrong, false, and fraudulent, and that he would not accept it; that he ascertained from one of said estimators that a large amount of the lumber, exceeding 100,000 feet, had been overlooked by mistake, and not estimated; that the defendants refused to make any adjustment of the matter, and insisted on the estimate already made as conclusive; that the plaintiff forbade the defendants removing the lumber; and that the defendants were insolvent, but threatened to continue to remove the same. The plaintiff offered to rescind the contract. The defendants, in their answer and at the hearing, insisted that the estimate of 2,974,000 feet was just and fair, and as nearly the exact measurement as it was practicable to arrive at on an estimate, and the allegations of the complaint were substantially denied. The court found that the work of the estimators was grossly inaccurate; that they made a gross mistake as to the amount of the lumber which they did estimate; that it amounted to 3,088,030 feet, instead of 2,974,000, being an excess of 113,425 feet; that there should be practically no difference between a reasonably careful estimate of the lumber in pile by competent estimators, and the actual board measure of the same; that the estimators wholly failed to estimate and include therein three piles of lumber containing 85,000 feet, which were merchantable lumber, and sold under the contract; that such piles were not composed of culls or timber; that the cull lumber in the stock was piled separately, and marked as cull lumber, and that the estimators had no authority to reject or refuse to estimate any of the stock, except the timber and culls in pile; that the defendants were solvent, and no grounds existed for the injunction. The amount removed by the defendants, and shipped away to various places, before suit, was stated in the defendants' answer as 256,000 feet, and in the complaint it was charged to be between 300,000 and 400,000 feet. The testimony tends to show that 290,000 feet was shipped away before the 9th of June, and thereafter 2,798,030 feet. The circuit court held that the plaintiff was entitled to relief in equity against the said mistake, and to recover on account thereof $2,182.68, being at the rate of $11 per thousand feet of the lumber not estimated. Exceptions were alleged to the findings above stated, and the plaintiff had judgment, from which the defendants appealed. Such points in the evidence as are material to the decision are noticed in the opinion.Hooper & Hooper, for appellants.

Alban & Barnes, (Gabe Bouck, of counsel,) for respondent.

PINNEY, J., ...