Tozier v. Brown
| Decision Date | 28 April 1902 |
| Docket Number | 57 |
| Citation | 51 A. 998,202 Pa. 359 |
| Parties | Tozier, Appellant, v. Brown |
| Court | Pennsylvania Supreme Court |
Argued March 18, 1902
Appeal, No. 57, Jan. T., 1902, by plaintiffs, from decree of C.P. Lycoming Co., March T., 1900, No. 2, on bill in equity in case of Thomas Tozier, F. A. Tozier and M. A. Tozier trading as F. A. Tozier & Company to use of Thomas Tozier, v. Henry Brown and James V. Brown, surviving partners of Brown, Early & Company, and J. K. P. Hall and A. Kaul. Affirmed.
Bill in equity for an account.
The facts appear by the opinion of the Supreme Court.
Error assigned was decree dismissing bill.
The assignments of error are overruled and the decree of the court below is affirmed.
C. Bartles, with him George B. M. Metzger, for appellant, cited on the question of laches: Yorks's App., 110 Pa. 82; Hamilton v. Hamilton, 18 Pa. 20.
J. C. Hill, with him H. C. & S. T. McCormick and H. R. Hill, for appellee, cited on the question of laches: Hartman v. Meighan, 171 Pa. 46; Ashhurst's App., 60 Pa. 290; Lusk's App., 108 Pa. 152; Penna. R.R. Co.'s App., 125 Pa. 189; Willard v. Wood, 164 U.S. 502; Sullivan v. Portland, etc., R.R. Co., 94 U.S. 806; Landsdale v. Smith, 106 U.S. 391; Badger 2 Wall. 87, 95.
Before MITCHELL, DEAN, BROWN, MESTREZAT and POTTER, JJ.
This bill was filed on December 30, 1899, and prays for an accounting. The court appointed a referee "to determine the question of the liability of the defendants to account to the plaintiffs as a preliminary question, under the provisions of the act of assembly June 24, 1895." He found against the plaintiffs and recommended a decree dismissing the bill which was duly entered by the court below. The plaintiffs appeal.
On June 27, 1878, the plaintiffs and the defendants entered into a written contract, not under seal, by which the plaintiffs, the parties of the second part, agreed to stock all the pine timber owned by the defendants, the parties of the first part, on about 15,000 acres of land on Chippewa river and its tributaries in the state of Wisconsin. Not less than 12,000,000 feet were to be stocked each year. The parties of the second part were to receive "for the purpose of meeting the expenses of stocking said logs . . . an advance of two dollars per thousand feet, as follows: one dollar per thousand feet on the first day of each month for all logs stocked during the previous month as per scale and at the close of the stocking season each spring one dollar per thousand feet for all logs stocked during such season." In addition to this sum, the contract provides that Tozier & Company shall "receive out of the proceeds of said logs such share or division of said proceeds, that the amount received by them should be twenty-five cents per thousand feet more than the share or division received by the parties of the first part." The contract also stipulated that the lands should be stocked clean, that the logs should be well marked and be driven into the main stream where the Mississippi logging company would take the drives on the first water of each spring. Two thousand dollars were to be advanced in October, 1878, to Tozier & Company which they were subsequently to refund or account for to the parties of the first part. It was also agreed that
The only stocking done by Tozier & Company was in the seasons of 1877 and 1878 and the total amount of logs stocked by them was 10,655,030 feet. Of this amount 4,755,370 feet were rafted out of the boom up to December, 1879, and the remainder, 5,988,660 feet, did not reach the boom in that year. In Wisconsin the method of driving logs to the boom is to put them in the river or on the bank and let the current carry them to the boom. Sometimes many years elapse before they are all driven to their destination. Tozier & Company sold their camps, etc., and left Wisconsin in the spring of 1879. They did not return, but abandoned the contract, leaving the larger portion of the timber uncut. Thereafter the defendants proceeded to stock logs on the land covered by the contract. On November 28, 1883, Brown, Early & Company notified Tozier & Company that as the latter had not proceeded with the performance of their contract since the stocking season of 1878-1879, they treated their conduct as an abandonment of the agreement and declared the contract null and void. In July, 1880, Brown, Early & Company, Kaul and Hall sold to Henry Brown all their interest in the balance of the logs that had been stocked but not rafted during the two previous seasons by the Toziers. In 1882 Brown sold to Weed and Early all his interest in the lands named in the contract and also in all logs that had been stocked from them. In 1886 and 1887, J. V. Brown, Weed and Early sold all their interests in the lands to Putnam, Knapp and Stout, the last payment being due on these sales in October, 1890.
The referee found, against the contention of the plaintiffs, that while notch-girdle-notch marked logs stocked by the Toziers on the lands of the defendants were received at the boom from time to time after 1879, yet that the evidence did not show that they were received in the boom and delivered to the defendants from 1882 to 1895 or were rafted out of the boom in 1894 and 1895. Henry Brown stocked some logs with the same mark in the season of 1880-1881 which went into the same boom. There was but one notch-girdle-notch log went into the boom in ...
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