Gill v. Johnstown Lumber Co.

Opinion by Me. Justice Heydbick, The single question in this cause is whether the contract upon which the plaintiff sued is entire or severable. If it is entire it is conceded that the learned court below properly directed a verdict for the defendant; if severable, it is not denied that the cause ought to have been submitted to the jury. The criterion by which it is to be determined to which class any particular contract shall be assigned is thus stated in 1 Parsons on Contracts, 29-31: “ If the part to be performed by one party consists of several and distinct items, and the price [539] to be paid by tbe other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. . . . But if the consideration to be paid is single and entire the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent Items.” The rule thus laid down was quoted with approval and applied in Lucesco Oil Company v. Brewer, 66 Pa. 351, and followed in Rugg & Bryan v. Moore, 110 Pa. 236. It was also applied in Ritchie v. Atkinson, 10 East, 295, a case not unlike the present. There the master and freighter of a vessel of four hundred tons mutually agreed that the ship should proceed to St. Peters-burg, and there load from the freighter’s factors a complete cargo of hemp and iron and deliver the same to the freighter at London on being paid freight for hemp £5 per ton, for iron 5s. per ton, and certain other charges, one half to be paid on delivery and tbe other at three months. The vessel proceeded to St. Petersburg, and when about half loaded was compelled by the imminence of a Russian embargo upon British vessels to leave, and returning to London delivered to the freighter so much of the stipulated cargo as had been taken on board. The freighter, conceiving that the contract was entire and the delivery of a complete cargo a condition precedent to a recovery of any compensation, refused to pay at the stipulated rate for so much as was delivered. Lord Ellenborough said: “The delivery of the cargo is, in its nature, divisible, and therefore I think it is not a condition precedent; but the plaintiff is entitled to recover freight in proportion to the extent of such delivery; leaving the defendant to his remedy in damages for the short delivery.” Applying the test of an apportionable or apportioned consideration to the contract in question, it will be seen at once that it is severable. The work undertaken to be done by the plaintiff consisted of several items, viz., driving logs, first, of oak, and second of various other kinds of timber, from points upon Stony creek and its tributaries above Johnstown to the defendant’s boom at Johnstown, and also driving cross-ties from some undesignated point or points, presumably understood by the parties, to Bethel in Somerset county, and to some other point or points below Bethel. For this work the consideration [540] to be paid was not an entire sum, but was apportioned among the several items at the rate of one dollar per thousand feet for the oak logs; seventy-five cents per thousand feet for all other logs; three cents each for cross-ties driven to Bethel, and five cents each for cross-ties driven to points below Bethel. But while the contract is severable, and the plaintiff entitled to compensation at the stipulated rate for all logs and ties delivered at the specified points, there is neither reason nor authority for the claim for compensation in respect to logs that were swept by the flood to and through the defendant’s boom, whether they had been driven part of the way by the plaintiff or remained untouched by him at the coming of the flood. In respect to each particular log the contract in this case is like a contract of common carriage, which is dependent upon the delivery of the goods at the designated place, and if by casus the deliver}1- is prevented the carrier cannot recover pro tanto for freight for part of the route over which the goods were taken: Wharton, Law of Contracts, sec. 714. Indeed this is but an application of the rule already stated. The consideration to be paid for driving each log is an entire sum per thousand feet for the whole distance and is not apportioned or apportionable to parts of the drive. The judgment is reversed and a venire facias de novo is awarded.