Western Mill & Lumber Co. v. Blanchard

The opinion of the court was delivered by Soott, J. Appellees, who were plaintiffs below, brought suit to recover the contract price for certain saw-logs sold by them to appellant, which were lost while being towed from the place of purchase to the company’s mill. The controversy was as to which party assumed the risk of tow-age; whether’, by the contract made, the logs were delivered at the place where purchased, or whether they were to have been delivered by appellees at the mill aforesaid. The contract was made upon the part of appellant through one Yilley, its special agent for that purpose. Upon the trial of the cause appellant offered testimony to prove that Yilley only had a special and limited authority to contract for the purchase of the logs to be delivered at the mill. Appellees objected to this testimony as immaterial. The court sustained the obj ection. Yilley had testified previous to the offer that in making the contract he told appel-lees that he could not purchase the logs to be scaled at the place where the bargain was made, and that it was contrary to the company’s rule to scale logs away from the mill. He also testified that the logs were to be paid for according to the scale at the mill, by the terms of the agreement. Appellees claimed that by the contract the logs were delivered at the place where the bargain was made, and that appellant assumed the risk of towage, and they contend here that their proof as to the place of delivery was not contradicted by the testimony upon the part of appellant. That appellant’s proof of a scaling to be made at the mill by which the amount of the payment was to be determined is not inconsistent with the appellees’ claim that the logs were delivered at the place where the bargain was made, and that thereby appellant assumed the risk of towage. [234] We think, however, that the evidence was fairly contradictory upon this point. The place of scaling, whereon the payment was to be based, seems to have been treated at the trial below as synonymous with the place of delivery, and if Yilley’s testimony was true, he substantially told appel-lees that he had no authority to buy the logs to be delivered at any other point than the mill. In this view of the case the proof offered by appellant that Yilley as a matter of fact had no such authority was material, in that it was a circumstance to be weighed in connection with Yilley’s testimony as to what contract he actually did make, and the court should have admitted it. It is also claimed by appellant that appellees recovered too large a sum. The contract was made December 7th, 1886, as alleged in the complaint. It is admitted that the agreement as to the time, place and manner of payment was that the appellant should pay for the logs at the city of San Francisco, where its principal place of business was located, sixty days after presentation to it there of a draft to be drawn by its agent at Port Hadlock upon it as drawee, and delivered to appellees immediately after delivery of the logs. There is no proof that the draft was ever issued or demanded, but it appears that payment was demanded at Port Hadlock, December 10th, 1886. The cause was tried in March, 1889. The jury returned a verdict in favor of appellees for $4,230.87, “ with legal interest.” No time was specified in the verdict from which interest was to be allowed. Appellees claimed interest, in their complaint, from December 7th, 1886. The court rendered judgment hpon the verdict for $4,230.87, “ with legal interest thereon from and after the 6th day of February, 1887,” and further added that the total sum for which j udgment was rendered was $5,135.79. In Meeker v. Gardella, ante, p. 139, decided at this session of the court, we held that a verdict similar to the one [235] in this case would not support a judgment for any sum, except by treating the interest clause as surplusage. The only contention made by appellant here, however, is, that too large a sum was included in the judgment as interest; that by the terms of payment agreed upon no interest should have been charged for sixty days from and after the time necessary for presentation of the draft at San Francisco. In rendering the judgment sixty-one days were allowed from the date of the contract, and less than sixty days from the day payment was demanded at Port Hadlock, as the non-interest bearing time; and as it would necessarily have taken some days to have presented the draft at San Francisco, it is evident that not enough time was allowed, in any event, if there could have been any judgment at all on the verdict for accrued interest, and we are of the opinion that such a judgment was unauthorized. For these reasons the judgment of the lower court is reversed, and the cause remanded. Anders, C. J., and Hoyt and Stiles, JJ., concur. Dunbar, J., dissents.