Washburn v. Winslow

• Decision Date: 01 January 1871
• Citation: 16 Minn. 19
• Parties: WILLIAM D. WASHBURN v. CARPENTER A. WINSLOW.
• Court: Minnesota Supreme Court

16 Minn. 19

WILLIAM D. WASHBURNv.

CARPENTER A. WINSLOW.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Hennepin county, denying a new trial.

Cornman & Lecky and A. H. Young, for appellant.

F. R. E. Cornell, for respondent.

RIPLEY, C. J.

The complaint states a contract between the plaintiff and defendant, the substance of which, necessary to be herein stated, is that defendant was to cut, during the logging season of 1867-8, the pine timber fit for saw logs on certain land of plaintiff, and haul the logs to proper positions for driving, paying plaintiff therefor by June 15, 1868, $2.50 per 1,000 feet, till which payment the logs were not to become defendant's property. The complaint further alleges, in substance, that thereunder defendant had cut 384,315 feet of such lumber, but had not paid as agreed, but had wrongfully removed the same from plaintiff's land and converted it to his own use.

The answer denies each and every allegation of the complaint, except that it admits the making of the contract, and that during the time alleged he [the defendant] "entered upon the land described in said contract, under and by virtue of said contract, and cut and removed therefrom 335,671 feet of pine lumber." It then alleges an accounting and settlement had between the parties on June 25, 1868, of all differences respecting the performance of the contract, and of plaintiff's claims for stumpage thereon, and of certain other claims of plaintiff against defendant, and that thereupon the sum of $916.66 was found due to plaintiff; and then pleads accord and satisfaction of all claims of plaintiff on said contract or otherwise.

The case coming on for trial, the parties made the following agreement in open court:

"It is admitted by each party that the amount of logs admitted in the answer as cut on the land of plaintiff shall be taken as the amount cut, and that the only issue in the case is as to accord and satisfaction." The plaintiff thereupon rested, and defendant, to maintain said issue on his part, introduced evidence tending to show that, having cut a large number of logs, some on his own land, and to the above amount on plaintiff's land under said contract, he sold and delivered to one Cover 100,000 feet of said logs, part whereof was of those so cut on plaintiff's land; which sale was with plaintiff's consent, with the understanding between all parties, and Cover's express promise to pay over the price, to the amount of plaintiff's claim on defendant, in respect of the logs so cut on his land, to the plaintiff, which, by agreement between plaintiff and defendant on the twenty-fifth of June, 1868, had been fixed at $916, and that fact communicated to said Cover. But there was no evidence tending to show any agreement or understanding whereby defendant, by reason of such arrangement with said Cover, was to be discharged from his liability to plaintiff.

At the close of the evidence plaintiff moved for judgment "because defendant had failed to show that plaintiff had accepted the agreement of Cover to pay for the stumpage due Washburn as payment of his claim, and [had] released defendant;" and defendant moved for judgment because "plaintiff had failed to make out a cause of action;" whereupon the court directed the jury to render a verdict for plaintiff in the sum of $922.66.

Defendant's motion was obviously without foundation. In the absence of proof of satisfaction plaintiff would, upon the pleadings and the agreement of the parties, have been entitled to a verdict for the value of 335,671 feet of pine logs estimated at $2.50 per 1,000 feet. The answer admits that defendant had cut that...