Winslow v. Fraser

The opinion of the court was delivered by Poland, J. The only question in this case is, as to the price the plaintiffs were entitled to charge for the sawing charged in their account. The defendant claims that they could only charge the prices fixed by the contract with Harvey Bruce, while he was a part owner of the mill, with the plaintiff Winslow, in 1853. The auditor reports that the defendant did make a contract with Harvey Bruce as to the price of sawing, which was to continue two years. Bruce and Winslow were then joint owners of the mill, but it does not appear that any other relation existed between them, than that of ordinary tenants in common, or that Bruce had any authority to enter into contracts for sawing in the future, that would bind Winslow. Harvey Bruce died in 1854, and his part of the mill became the property of the plaintiff Betsey Bruce, his widow; whether it was set to her as dower out of his estate, or whether she was a direct purchaser from his administrator, does not appear, and is not material; in either case, she held as a grantee, and was no more bound by any of the contracts for sawing, made by her husband in his life time, than any other grantee of his portion of the mill. She was in no sense his personal representative, so as to be bound by his contracts. A small portion of the defendant’s logs were at the mill when Harvey Bruce died, but most of them were drawn afterwards. Under this state of facts, .we think the plaintiffs were in no manner bound by the contract made by Harvey Bruce, unless it was made known to them, and they assented to do the defendant’s sawing under it. It does not appear that either of the plaintiffs had any knowledge of the contract made between the defendant and Harvey Bruce, until after the death of Bruce, when the defendant did inform the plaintiffs of the contract, and then either the plaintiff Winslow, or Mrs. Bruce’s son, who carried on the mill, said to the [525] defendant, that they would saw what lumber the defendant then had at the mill, at the prices of that contract, and for such sawing the plaintiffs have only charged those prices. This language, we think, can not be fairly construed into an assent to perform that contract beyond' the lumber in the mill, and the defendant could not reasonably understand it to extend to lumber drawn after-that time. Assenting to the contract in this restricted form, was virtually refusing to assent to it to any greater extent. The plaintiffs, then, for the subsequent sawing, were entitled to charge, as if there was no contract, what it was reasonably worth; and the prices charged and paid at this mill, and other mills in the vicinity, were evidence of it. Indeed, it does not appear to have been questioned but that the plaintiffs were entitled to those prices unless they were bound by Harvey Bruce’s contract. The forfeiture of twenty-five cents per thousand for delay of payment for more than three months, which the plaintiffs claimed by the custom of this and other mills, was disallowed by the county court, and no exception by the plaintiffs, so that it is not properly before us. But clearly, no such forfeiture could be enforced unless known and assented to by the defendant. ' The judgment of the county court is affirmed.