Backus's Appeal

The opinion of the court was delivered, May 7th 1868, by Agnew, J. In the outset of the opinion it is proper we should notice the manner in which this case is brought before us. The controversy turns upon facts, and involves a variety of circumstances. Eifty-eight witnesses were examined, whose testimony fills one hundred and twenty:three pages of solid small type. Much of the evidence is conflicting, and relates to a peculiar local business. Such a case ought to have gone to a master for a report upon the facts. We may not be able to do justice to it, as to us all witnesses appear alike when their depositions come before us on paper. No judge of the Common Pleas should take such a case on the evidence, without a reference first to a master, to sift the testimony and collate and report the facts. He should appoint some one competent to act both as examiner and master. Having heard the witnesses and familiarized himself with the case in every step" of its progress, the -master is more competent to determine upon the credibility of opposing witnesses, and to judge of the evidence. Being fully possessed of the case, the dispute is apt to be confined to the real grounds of controversy. It is to be hoped [193] the judges of the Common Pleas will follow these suggestions, and thus do justice to the parties and to their own judgments. After a careful examination of the evidence (a labor of several days), we have come to the conclusion that the estimate of the timber made under the contract is too uncertain and doubtful to warrant a decree of specific performance. The contract falls within the scope of a chancellor’s jurisdiction, and has been so far executed as to entitle the plaintiff to a decree of specific performance, but for a single fact. The parties, by their agreement, made its execution depend upon a count of the trees on the land, and an estimate of the quantity of lumber contained in them, making the payment dependent on the number of thousand feet to be found by the estimate. They agreed upon the persons to make the count and estimate the quantity, and provided for a new selection of persons in case of their failure to act. The three persons appointed did act to a partial extent, and a report was signed by the requisite number. It is the real character of this report which is the subject of dispute. The sale of the timber is the true subject of the contract, and the count and estimate ■ are only the means of its execution. Equity, therefore, to prevent a failure of the principal matter, might, in a proper case, furnish a means of ascertaining the quantity of lumber, if the contract made had failed without a serious fault on part of the plaintiff, or. its- execution had become impossible through fortuitous causes. But the plaintiff founds his bill upon the contract-means, asserting that-a fair and true estimate had been made according to its terms. He must show, therefore, a full and fair performance of the contract-mode of ascertaining the price of the timber. Without this it is impossible to execute it specifically, payment of the price being as indispensable as the conveyance of the timber. In such a mass of evidence it is impossible to discuss the facts in detail within any proper limits of an opinion. It is sufficient to indicate the points of doubt cast upon the report by the entire volume of the testimony. The first matter to be noticed is the admitted defect in the report, apparent on its face, to wit, the entire omission to estimate the cherry timber on the first-mentioned tract. Had this been the only objection to the report, and merely the result of an oversight or misapprehension, equity might have aided the plaintiff by means of a supplemental report. But this objection, furnishing a direct ground of assault upon the report, is strengthened by the cloud thrown over the whole estimate by the conduct of the appraisers and of the plaintiff. That Hamlin, one of the appraisers, did not unite in making up the estimate which resulted in the report of the other two estimators, is beyond a doubt. He participated in counting the trees and estimating the number of logs each would cut, and also set down [194] some of the observations on paper, but he took no part in the computations necessary to finish the estimate and to make up the report. It is said this was only a matter of calculation. This is not correct. The papers made in the woods were to be compared, their results ascertained and suggestions made to each other before there could be a final and full calculation made. We are informed by Hamlin himself that he was not satisfied with their observations on the ground, that many of the standing trees were estimated at the top cut as of the diameter of twelve inches, which he is convinced would have cut from fourteen to sixteen inches, and many trees were estimated at six logs which would have cut seven, making a difference of probably 150,000 feet. There is evidence also that one, and perhaps both, of the other two appraisers were not fully satisfied with the conclusions made upon the ground. Hamlin had no notice of the meeting of the other two to calculate the quantity, cast up the amount and make up the report, and took no part. It was the right of each party to the contract to have the benefit of his skill and observation, and of his suggestions in making up the final estimate. No one now can know how far his views and • suggestions might have influenced the minds of his coadjutors and convinced them of errors in their observations or of allowances proper to be made. It is said in extenuation that he was sick and could not be had. Under other circumstances this fact might be laid as a ground to induce a chancellor to aid the execution of the contract because of the failure of the agreed mode through an unforeseen contingency. But it will not make that good which is bad because of its consequence. The report made without Hamlin’s participation in the deliberations which led to it is not saved by his sickness. Next we have the conduct of the plaintiff. That he undertook to get up the report in the absence of Hamlin, by assisting Hagadorn and Blair to make it, is not questioned; but the question is how far his interference may have affected the result. It is quite possible he copied correctly from the book the count and observations made upon the ground, so far as he assisted to make out the paper from which he and Hagadorn calculated the quantities; and it is possible he made the calculations correctly; but how can we know this confidently ? Hagadorn and Blair may have felt satisfied with his work, but it is still true that he did that which it was Hamlin’s province and not his to do. It is just here that the evidence of the actual quantity of the timber on the ground makes its deepest impression. The report estimates the quantity of pine lumber at 400,000 feet, and of cherry at 218,940 feet. Since the report, the trees have been counted and estimated by various witnesses, many of them experienced lumbermen, at 950,000, 965,000, 979,000 and 1,053,000 feet of pine. One estimate, [195] founded upon an average obtained from twenty trees, gave 1,121,324 feet of pine. The cherry trees were estimated-at 676,077 feet, of which those on the first-mentioned tract, omitted from the report, made 10,829 feet. Now, allowing a large margin for errors and for rotten timber, yet the disparity between the number of feet estimated by the appraisers in their report and that estimated by many others equally competent leaves upon the mind a painful uncertainty as to the fidelity of the report, which, connecting itself with the conduct of the appraisers and the interference of the plaintiff, renders it difficult to be assured that a decree founded upon it will be based upon justice and fairness. Here it is we think the learned judge committed an error. Instead of looking at the question with the conscience of a chancellor, who is moved to make a decree only by a full conviction of the equity and fairness of the estimate, he viewed it as a mere law judge determining upon the legal effect of the report. Having satisfied himself that the evidence was insufficient to establish a clear case of fraud, he then determined that at law the report was final and conclusive between the parties, and decreed accordingly. But in cases of specific performance, courts of equity will not interfere to decree performance, except where it would be strictly equitable to make such a decree: 2 Story’s Eq., §§ 750, 750 a. An agreement, to be entitled to be carried into specific performance, ought to be certain, fair and just in all its parts: Id., § 769. A defendant may resist a decree on evidence, where evidence of a like character would be insufficient to establish the case of the plaintiff: Id., § 770, The specific performance of awards, as well as of contracts, rests on the sound discretion of the court; and if, upon the face of the award or otherwise, it appears that there are just objections to enforcing it, courts of equity will not interfere: Id., § 1459. On all the evidence, we are unable to say that the report in this case is entirely trustworthy. It is defective on its face as to the cherry timber, and it is made uncertain and doubtful by the evidence of its imperfection and the contradiction of its correctness. Without the report, or such a substitute in a case of failure as equity would resort to in aid of the contract, no decree can be made. We must, therefore, reverse the decree in this case and dismiss the bill, but in such a manner as will not impair the rights of the plaintiff under his contract. The decree of the court below is therefore reversed, and the bill of the plaintiff dismissed at his costs, but without prejudice to the plaintiff in any future proceeding upon the contract by action, bill or otherwise.