Whitney v. Clifford

• Decision Date: 31 January 1879
• Citation: 46 Wis. 138,49 N.W. 835
• Parties: WHITNEY v. CLIFFORD.
• Court: Wisconsin Supreme Court

46 Wis. 138

49 N.W. 835

WHITNEY

v.CLIFFORD.¹

Supreme Court of Wisconsin.

Jan. Term, 1879.

Appeal from circuit court, Portage county.

Action by Whitney against William J. Clifford for damages from fire caused by sparks from defendant's mill. A nonsuit was ordered, and plaintiff appeals. Reversed.G. W. Cate, ( Jones & Sanborn, of counsel,) for appellant.

Raymond & Haseltine, for respondent.

TAYLOR, J.

This action is brought to recover damages for burning a large quantity of lumber belonging to the plaintiff. The complaint charges that the fire was communicated to the lumber by sparks and cinders emitted from the smoke-stack of a shingle-mill belonging to and used by the defendant at the time of the accident. Upon the trial in the court below, the learned circuit judge directed a nonsuit, and judgment was entered against the plaintiff. The only ground upon which it is contended in this court that the nonsuit was properly ordered is that the defendant, at the time of the fire, was not in the possession of the mill, and that one A. F. Dodge was in such possession, and had the exclusive control of the running and use of the same, under a written contract with the defendant. It is urged by the learned counsel for the respondent that the contract referred to created the relation of landlord and tenant between the defendant and Dodge; and that Dodge, being in the actual possession and use of the mill at the time of the fire, as tenant, is alone responsible for the injury occasioned to the plaintiff by reason of the fire communicated by the sparks and cinders emitted from the smoke-stack of said mill. It is also insisted that, if the relation of landlord and tenant did not exist between the defendant and Dodge, yet, by the provisions of the contract, the possession and control of the use of the same was in Dodge at the time, and therefore the defendant is not liable for the damages caused by the use of such mill. Upon this appeal it is unnecessary to examine any other questions than the ones above stated, as it is quite evident that upon other points of defense to the action there was sufficient evidence to entitle the plaintiff to have the same submitted to the jury.

The following is a copy of the contract between the defendant, Clifford, and Dodge, under which it is claimed that Dodge was in possession and running the mill when the fire occurred: “It is hereby agreed by and between A. F. Dodge, of the city of Stevens Point, in the county of Portage and state of Wisconsin, and William J. Clifford, of the same place, that said Dodge shall work and operate, during the milling season of 1877, a certain shingle-mill situate in the city of Stevens Point, which said mill is now in the possession and under the control of said Clifford, and shall manufacture shingles from logs to be furnished by said Clifford, as hereinafter stated. It is further agreed by and between said parties that said Clifford shall pay to said Dodge the following rates for manufacturing said shingles: For the brand known as ‘Star A Star,’ 60 cents per thousand; and for the brand known as ‘Shaded A,’ 42 1/2 cents per thousand. It is further agreed by and between said parties that said shingles shall be made and put up in a good and workman-like manner, and that said Dodge shall hire and pay all the men employed in the manufacture of said shingles, and shall furnish all bands, bandiron, oil, nails, and files in the manufacture of said shingles, and shall pay for repairing all breaks in the machinery of the said mill, when the cost of said repairs shall not exceed $5; any break in the machinery of said mill, the repairing of which will cost more than $5, to be paid for by said Clifford. It is further agreed by and between said parties that said Dodge shall load all shingles so manufactured as aforesaid on the cars on the switch of said mill, said Clifford to pay all expenses for loading said shingles, over and above the sum of $1.25 per car, until such time as a new side track to said mill shall be completed; after the completion of said side track, said loading to be done by the said Dodge, and included in said amount to be paid for manufacturing said shingles. It is further agreed by and between said parties that said Clifford shall remove, or cause to be removed, all slabs and refuse timber from the grounds of said mill, so that the amount of said slabs and refuse timber on the grounds of said mill shall not at any time exceed ten cords. It is further agreed by and between said parties that said Clifford shall take an account of all the shingles manufactured during each week, at the end thereof, and shall credit said Dodge with the amount. And it is further agreed by and between said parties that said Clifford shall settle with said Dodge on the first day of each month, and shall at that time pay said Dodge the amount due for manufacturing said shingles at the price above stated. It is further agreed by and between said parties that said Clifford shall furnish to said Dodge good and suitable logs for shingles, to be manufactured as aforesaid, said logs to be delivered in the mill boom by said Clifford, and that said Clifford shall put said mill in good running order, and furnish logs as aforesaid in sufficient number to keep said mill running during the running season of 1877. It is further agreed by and between said parties that all shingles less than four inches, clear from knots in butt, may be packed and sold by said Dodge for his separate use and benefit, or said Clifford shall have the right to take said shingles less than four inches clear, by paying said Dodge 25 cents per thousand for manufacturing good shingles.”

After a careful consideration of the provisions of this contract, we think it is not a lease of the mill by Clifford to Dodge. Nothing in the language of the contract indicates that the parties intended it as such, and there does not appear to be anything in the nature of the contract which necessarily creates the relation of landlord and tenant. All the circumstances of the respective parties, as indicated by the terms of the contract, show that it was a hiring by Clifford of Dodge to manufacture certain logs owned by Clifford into shingles, Clifford furnishing the machinery for manufacturing the same, and Dodge furnishing the labor and other necessary things to run the machinery, pack the shingles, and deliver the same on the cars at the mill, at a fixed price per thousand for the shingles manufactured, according to quality. Clifford was to put the machinery in good repair, and to repair all breakages costing more than $5. Dodge acquired no right under the contract to use the mill for any other purpose than that of manufacturing the logs furnished by...