Yarno v. Hedlund Box & Lumber Co.

• Decision Date: 05 May 1924
• Docket Number: 18194. [*]
• Citation: 225 P. 659,129 Wash. 457
• Court: Washington Supreme Court
• Parties: YARNO v. HEDLUND BOX & LUMBER CO.

225 P. 659

129 Wash. 457

YARNO v. HEDLUND BOX & LUMBER CO. No. 18194. ^[*]

Supreme Court of Washington

May 5, 1924

Department 2.

Appeal from Superior Court, Spokane County; Lindsley, Judge.

Action by G. A. Yarno against the Hedlund Box & Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded with directions.

Hamblen & Gilbert and Post, Russell & Higgins, all of Spokane, for appellant.

Ferris & Ferris and Graves, Kizer & Graves, all of Spokane, for respondent.

FULLERTON J.

The appellant, Hedlund Box & Lumber Company, a corporation, owns and operates a sawmill, planing mill, and box factory located at the city of Spokane. Some time prior to October 2 1922, it purchased from the United States through its forestry service, all of the merchantable timber standing and growing upon certain described land forming a part of a government forest reservation situated in the state of Idaho. The timber consisted of various kinds, and amounted in quantity, according to the cruise of a member of the Forestry Service, to approximately 14,500,000 feet, board measure, of which (approximately) 1,000,000 feet was cedar. At the date above given, the appellant entered into a written contract with the respondent, Yarno, to log the timber. Yarno in due time began the logging operations, and proceeded therewith until January 17, 1923, when the company terminated the contract, compelled Yarno to vacate the premises, and took upon itself the logging operations. On February 2, 1923, Yarno began the present action to recover against the company as for a breach of the contract, and to recover in a second cause of action an unpaid balance of $200 alleged to be due on account of a sale of certain personal property to the company. After issue joined, a trial was had before the court sitting with a jury, and resulted in a verdict (returned April 25, 1923) in favor of Yarno in the sum of $22,310. From a judgment later entered on the verdict, the present appeal is prosecuted.

The contract entered into between the parties was somewhat minute in its details, and to an understanding of some of the questions presented by the appeal it is necessary to outline its provisions. By the terms of the contract, the respondent, called therein the logger, agreed to cut, skid, deck, chute, haul, and deliver free on board freight cars of the Spokane International Railroad, at a station on the railway line of that company known as Meadow Creek, all of the merchantable saw timber 'consisting only of Idaho white pine, Douglas fir and larch, spruce, white fir, and hemlock species' standing and growing upon the tract of land described, which constituted all of the timber on the land except the cedar. The logger further agreed to cut the logs square on both ends; to cut and remove all defects in the timber, such as heavy butts, thick pitch, shake, rot, worm holes, burnt faces, and the like; to cut the white pine trees not more than 16 inches above the ground measured on the uphill side, and other trees not more than 4 1/2 feet above the ground, measured in a like manner; to cut the logs in specified lengths, the quantity to be cut into each length being designated by percentages of the whole, and to mark the length of each log on the small end. The logger further agreed to construct all the necessary camp buildings for housing his employees, and to construct them in the manner prescribed by the United States Forestry Service, and to keep the same sanitary according to the regulations of that service, to build all roads, chutes, skidways, landings, necessary for the successful performance of the work, and to do this, as well as construct the camps, at his own expense. He also agreed to furnish at his own expense, all tools, rigging, and equipment necessary to perform the work contemplated by the contract, and it was provided that title to the buildings, chutes, skids, and skidways, and other like structures, should be in the appellant company, until the completion of the contract, when they should revert to the United States government.

The contract contained these further provisions, namely:

'(d) That he shall remove the timber clean as the work progresses and perform said work in a good and workmanlike manner to the full satisfaction of an agent of the company, and/or of the United States Forest Service. This means that the job is to be worked thoroughly and not merely have the 'face' or front cut down and logged leaving the back timber untouched or in bad condition;

'(e) That the sawing and felling of timber in advance of skidding or hauling out of the woods is to be supervised and regulated as to quantity by the company.'

'Time of Performance. The logger agrees to enter upon the performance of this contract at once and to prosecute the same efficiently and continually, and in such manner as to complete the same on or before December 15, 1926. Unless such amounts of timber are reduced in writing by the United States District Forester at least 2,500 M' B. M. or its equivalent shall be cut and delivered prior to December 15, 1923; at least 6,000 M' B. M. or its equivalent shall be cut prior to December 15, 1924; at least 10,000 M' B. M. or its equivalent shall be cut and delivered prior to December 15, 1925. Time of performance is of the essence of this contract and in case the company is dissatisfied with the progress being made by the logger under the conditions as set forth in this contract then the company shall at any time have the right, at the company's option, to either:

'(1) Put additional men and teams on the job to speed up the work at the expense of the logger; or else

'(2) Terminate this contract and proceed itself through other employees of contractors with said work.

'In such event, at the termination of this contract on account of delay, the logger agrees that he shall have no right to receive any consideration or credit for any improvements made or for any uncompleted work.'

On the other side, the company agreed to pay the logger $14 per 1,000 feet, board measure, for all logs delivered on cars at the railroad station at the place before mentioned, and agreed to make the advancements necessary to be expended in the preparation for the work, and to take care of the expense bills and the pay rolls until the time of the first settlement provided in the contract.

The principal controversy between the parties arises from a difference in view as to the proper interpretation of the contract. To an understanding of these questions, it is not necessary here to enter upon a special review of the evidence. There is a claim that the verdict is excessive, but as the evidence upon which this claim is founded relates to certain special matters, it can be best noticed further on in the discussion.

Passing to the legal questions involved, it is first necessary to notice a general objection made by the respondent to a consideration of the questions having their foundation in the instructions of the court. It is contended, first, that no proper exceptions were taken to the instructions, and, second, that, conceding they were properly taken, they are not properly brought to this court in the record. The Practice Act of 1893, the material part of which pertaining to the question involved is found at section 384 of the Code (Rem. Comp. Stat.) provided that exceptions to a charge to the jury, or a refusal to give as a part of such charge instructions requested in writing, may be taken by any party by stating to the court----

'after the jury shall have retired to consider of their verdict, and, if practicable, before the verdict has been returned, that such party excepts to the same, specifying by numbers of paragraphs or otherwise the parts of the charge excepted to, * * * whereupon the judge shall note the exceptions in the minutes of the trial, or cause the stenographer (if one is in attendance) so to note the same.'

Elsewhere in the same act it was provided that for the purposes of an appeal matters occurring at the trial and 'not already a part of the record in the cause' (section 388), could be made a part of the record by a bill of exceptions or a statement of facts certified by the trial judge. Under this act it was possibly the uniform practice to take exceptions in accordance with the directions of the cited section, and to include in a proposed bill of exceptions or statement of facts the parts of the charge of the court excepted to, and the requests to charge which the court refused, and cause the same to be certified as a part thereof. At its session of 1909 (Rem. Comp. Stat. § 339) however, the Legislature made a material change in the practice and proceedings on the trial of actions before a jury in the superior court. The details of these changes need not be specifically pointed out, it being sufficient for the purposes here to say it is therein provided that either party may, at any time before the hearing of a motion for a new trial, except to the instructions of the court. This change as to the time when exceptions to instructions may be taken has caused a change in the uniformity of manner of taking such exceptions. It is the practice in certain instances to take exceptions in the manner and at the time prescribed in section 384 above cited; in other instances, the practice has been to await the return of the verdict, and, if that be adverse, to move for a new trial and then subsequently prepare and file with the clerk of the court written exceptions to the instructions, specifying the particular instructions excepted to and the grounds on which the exceptions are based. It was in this latter manner that the exceptions were taken in the present instance, and it is urged that it is not a sufficient compliance...