Bigler v. . Hall

Lott, Ch. J. The defendants, by the express terms of the contract, for the breach of which this action was brought, did “agree to deliver, in the Susquehanna river at Binghamton, in rafts, from one hundred and fifty to two hundred thousand feet of pine logs, above the Pratt & Tyler saw-mill.” The logs were designated as comprised of two lots, lying in specified localities, all of which (except fifty of the poorest, in one lot, and which might be thrown out and not rafted) were to be delivered as above stated. The quantity was to be ascertained by Mr. S. R. Carpenter’s measurement of the logs, and the plaintiff was (as it was expressed in the contract) “ to pay sixteen dollars per thousand feet, one-half at two months and the balance at three months in good bankable paper, to be dated when the account of measurement is handed in, $200 to be paid within six days of this date, by mail”—evidently meaning that the sum of $200 was to be paid to the defendants by being sent through the mail, within six days from the date of the contract, and that payment of the balance *170 of the price to be paid was to be made, as soon as- the plaintiff was informed of the quantity by such measurement, by his two notes of equal amount, to be dated when the account of such measurement was handed in, and to be payable in bankable money, one in two months and the other in three months from their respective dates. The agreement also specified the time when such delivery was to be made. There is no ambiguity or uncertainty in any of its terms. _ It is a'contract for the absolute delivery of the logs at a designated place and time, for a price to be ascertained in a specified manner. Such being the construction of the contract, and the plain- . tiff having paid the defendants the whole amount for which he was liable, they were bound to deliver the logs according’ to its terms, and they were not discharged -from the obligation by their inability to do it, in consequence of freshets which caused a loss of some of them. They did not make any provision against such a casualty or accident. It was one which they could have guarded against, and it is not unreasonable to assume that 'both parties contemplated the possibility of such a contingency in fixing the price to be paid by the plaintiff. Assuming, then, that the legal obligation of the defendants was as above stated, it is immaterial whether the logs were lost through their negligence or not. That question is not involved in the case. It follows that the judge at the circuit properly ruled that the plaintiff was entitled to recover for what lumber he paid for and had not been delivered to him by the defendants accord-, ing to their agreement, and as such payment was made at least two years before the day of trial, he, in charging the jury that the plaintiff was also entitled to interest on that sum for one year and ten months, charged more favorably to the defendants than the law required. The error, if any, was to the plaintiff’s prejudice and their advantage. They therefore are not aggrieved by it, and have no cause of complaint on account of it. The plaintiff, in proving the quantity that was not deliv *171 ered, was not required to do it by Mr. Carpenter’s measurement, on the ground or objection taken by the defendants’ counsel to other evidence offered for that purpose, that the parties had “ agreed upon a mode of measurement between themselves.” It was a fact, ascertainable and proper to be established by any witness having sufficient knowledge to testify on the subject. It may be proper to add, that it does not appear to have been made a question on the trial whether the contract was a contract of sale, but the points litigated seem to have been whether the defendants were absolutely liable for all of the logs that had not been delivered, on the construction of the agreement that he had bound himself, without any qualification of his obligation, to make a delivery of all, or whether they were only liable for such as had been lost or not delivered through their fault or negligence. I have consequently not considered it. It seems to me, however, immaterial. If it can be so construed, and if the logs mentioned in the contract became the property of the plaintiff as soon as they were measured and paid for by him, as the defendants claim on this appeal, it does not follow, as they say, that “ from that time they were at his risk.” The absolute and unqualified obligation of the defendants to deliver them at the place designated for that purpose still existed, and their failure to fulfill and discharge it, and their duty growing out of it, made them liable for the damages growing out of its breach. In any aspect of the case the plaintiff was entitled to recover. It follows that the judgment appealed from is not erroneous, and it must, consequently, be affirmed, with costs.