Cohn v. Stewart

Oole, J. It is obvious that tlie most favorable view which can be taken of the plaintiff’s case, is to assume that the contract was as claimed by him, and as found by the jury upon the evidence. In that view, the written memorandum which was offered in evidence on the trial, may be said to show the terms of the contract as finally agreed upon by the parties. The inquiry then is, What was the duty or obligation of the defendant under the contract? Did he undertake and agree to receive and store the plaintiff’s logs in the Wausau boom, himself becoming responsible for the capacity of the boom to hold the logs when they should arrive, and for the ability or disposition of the boom company to take them into the boom? The plaintiff insists that under the contract the defendant assumed that responsibility. He had the undoubted right to bind himself to that extent by his contract; and if he has done so, the law will hold him to a strict performance of his undertaking. By the contract, the defendant in effect agreed to take charge of all the plaintiff’s logs of certain designated marks, as quick as they should arrive at the Wausau boom, and to saw and deliver the lumber at the tail end of Molndoe’s mill, at a good place to raft, all for the payment of $2.75 per thousand feet; and to put all the lumber, or a portion thereof, in a pile at a good place to raft as soon as ordered, for the payment of $0.25 per thousand feet; and it was further understood that the defendant was to pay all the charges for boomage on the logs; the boomage charges being included in the $2.75 per thousand feet specified above; the plaintiff on his part agreeing to drive the logs mentioned to the Wausau boom as soon as the water would permit. These are the material clauses of the contract to be considered, and which determine the extent of the liability of the defendant in respect to the logs. As aiding in the construction of this contract, it is claimed by the defendant’s counsel that the state of facts which existed when it was entered into, and which it is reasonable to sup [534] pose were in tbe contemplation of the parties, must be borne in mind. And these facts, as abundantly shown by the testimony, are, that the parties were familiar with the Wisconsin river, with the running of logs down the same, and with the mode of transacting all lumbering business along the ri ver. It appears that the plaintiff knew that the Wausau boom, where his logs were to be stored or kept until they were manufactured into lumber, belonged to an incorporated company. He testified that he had seen the charter, and had seen parties act in reference to it at the boom. He knew all about the situation of the boom; its limited capacity to hold logs; that large quantities of logs were driven down the river to the boom at certain seasons; and that it was under the exclusive and absolute control of the boom company. No person had a right to interfere with the boom, and it belonged to the company alone to say what logs or timber should be received or excluded from it. It is true, the charter imposed upon the company the duty of retaining in its boom logs and timber when the owner thereof liad filed with the secretary a request to that effect, together with the marks on his logs, for a compensation to be fixed by the board of directors, not exceeding a given amount; but in the storage of logs the stockholders of the company had a preference over other persons, under the charter. (Secs. 11 and 15, ch. 45, P. & L. Laws of 1871.) The defendant was a stockholder and officer in the company, but he had no right to direct what logs should be received in the boom. The company was not obliged to receive or take charge of any more logs or lumber at any one time than the capacity of its boom would accommodate or admit of; and it could relieve itself from all liability for or on account of logs coming to or into its boom, by notifying the owner, or person having charge of log-drives, that its boom was full, and to stop driving until it was ready or able to receive logs again. Sec. 16. There was testimony which tended to show that the plaintiff’s agent in charge of the logs was notified by the com [535] pany that the boom was full, and that it was impossible to receive the plaintiff’s logs, but that he refused to stop the drive. The court below ruled, in effect, that this constituted no excuse for the failure of the defendant to receive the logs into the boom as they arrived, and to keep them safely therein until manufactured into lumber. In the view of the circuit court, the contract, by its terms, imposed upon the defendant the duty to receive the logs as they should arrive at the "Wau-sau boom; and he had assumed the risk as to the capacity of the boom to hold the logs, and of the ability of the company to take charge of and retain them. And the question is, "Was this a correct construction of the contract, and of the engagement of the defendant? It seems to us that it is not. The plaintiff was well aware that the defendant had no boom at Wausau, and that he possessed no facilities, other than the company’s boom afforded, for storing and keeping logs. He contracted with reference to this condition of things, and the existence of the notorious facts above stated, with which he was entirely familiar. This being the case, it seems to us an unreasonable inference from the language used, to say it bound the defendant to stop the logs as they were driven down the river, and to put them into the company’s boom and hold them there, notwithstanding this was impossible. It is true, if the defendant assumed that responsibility or duty, he is bound to discharge it, or suffer the consequences of his failure, whatever might have been the condition of the boom, because he might have provided against the contingency in his contract. It appears to us, however, that the agreement neither contemplated nor required the defendant to get the logs into the boom, but that this duty devolved upon the plaintiff. The plaintiff, by the contract, was to drive the logs to the Wausau boom as soon as the water would permit; and the defendant agreed to take charge of them as quick as they arrived at the boom. The defendant’s duty or charge in respect to the logs did not arise or commence until the logs [536] arrived at or came to tbe boom. But tbe duty of driving the logs to tbe boom, and tbe risk that tbe company would be able to receive or retain them, rested with tbe plaintiff. Tbe contract was one of bailment, where tbe identical logs which tbe defendant was to take charge of and manufacture into lumber were to be returned in an altered form. Foster v. Pettibone, 7 N. Y., 433. There is a clause in tbe contract which required tbe defendant to pay “all tbe boomage;” that is, be was to pay whatever charges tbe company might make for retaining and storing tbe logs. But we do not think tbe parties intended, by this clause, so to enlarge tbe defendant’s duty as to render him responsible for providing facilities and booms for receiving and bolding tbe logs whenever tbe company should drive them. Such a construction would do violence to tbe natural meaning of tbe contract as collected from tbe entire instrument. If tbe intention was that tbe defendant should stop tbe logs as they came down tbe river, and provide booms in which they could be stored until sawed into lumber, quite different language would have been used. Tbe learned circuit court expressly charged that it was no excuse for a nonperformance of the defendant’s contract, that tbe boom was already full with tbe logs of other parties, or that tbe boom company would not permit tbe plaintiff’s logs to be put into it; for these were contingencies which the defendant should have provided against in bis agreement. According to this view, tbe defendant took all the risk of furnishing boom facilities for receiving and storing tbe logs whenever tbe plaintiff should drive them. This error must work a reversal of tbe judgment. It is unnecessary to notice tbe other questions discussed by counsel. Tbe respondent asked for a rehearing, and briefs in support of tbe motion were filed by Geo. D. Waring and L. S. Dixon. By the Oov/rt. — The judgment of tbe circuit court is reversed, and a new trial ordered. They contended, 1. That it was erroneously assumed in the foregoing opinion that the circuit court had put a construction upon the contract, which construction was different from that put upon it by this court; whereas the record shows clearly that the circuit court left it entirely to the jury to determine from all the evidence what the contract was, and merely instructed them as to the legal consequences in case they should find that the contract was such as plaintiff, m Ms complaint, alleged it to be. 2. That the contract was in fact an oral one, and the written memorandum was admitted only to be considered by the jury in connection with other evidence in determining what the real agreement of the parties was; and, there being confessedly no written contract, the question what the agreement was, properly belonged to the jury. 3. That while defendant denied in the court below that the written memorandum put in evidence contained the true terms of the contract between the parties, and claimed that the terms of such contract as actually entered into were more favorable to himself; and while he also contended that if the jury should find that the contract was as claimed by the plaintiff (i. e., as claimed by. plaintiff in Ms complaint), still he had shown a sufficient excuse for a nonperformance — he did not in any manner object to the submission by the court to the jury of the question whether the contract was in fact such as was claimed in the complaint, viz., a contract on his part to receive the logs iMo the boom, as well as to take charge of them, etc., after they should be admitted therein; that he took no exception to the instructions by which that question was submitted; that the instructions asked by himself assumed that the jury might find that the contract was as claimed by the plaintiff; and that he had thus lost all right to object in this court to such submission of the question to the jury. To the point that the appellate court will not consider objections not properly presented to the consideration of the trial court, they cited Vilas v. Downer, 21 Vt., 423; Wentworth v. Leonard, 4 Cush., 417; Bullock v. Hayward, 10 Allen, 462; Lachner v. Salomon, 9 Wis., 129; Hayward v. Ormsbee, 11 id., 8; Bogert v. Phelps, 14 id., 88, 94; Weisenberg v. Appleton, 26 id., 56, and numerous other cases. 4. That the objection was not saved by the exception taken to the refusal of a new trial, that being made upon specific grounds, not including this objection; and it being the rule that where a party moves for a new trial upon a bill of exceptions, he must rely upon the grounds taken and points made by him on the trial. Staring v. Brown, 6 Barb., 109. 5. That even if the written memorandum had been the sole evidence of what the contract was, or had been duly executed as the act of the parties, the meaning of the words in controversy would have been a question of fact for the jury. If the words of a written instrument are equivocal, yet susceptible of a definite application by resorting to the circumstances under which the instrument was made, the meaning of the instrument is a question for the jury. Qan-son v. Madigan, 15 Wis., 144, 153, and cases there cited; Prentiss v. Brewer, 17 id., 635; Rockwell v. Ins. Go., 21 id., 548; O. db P. R. R. Co. v. Booster, 32 Yt., 805; Darling v. Dodge, 36 Me., 370; Berry v. Billings, 47 id., 329; Copeland v. Hall, 29 id., 94; law <o. Cross, 1 Black, 538; Pollen v. LeRoy, 30 N. Y., 563; Martin v. Cope, 28 id., 181. In reply, the appellant’s counsel argued, that upon the plaintiff’s evidence that defendant accepted by letter a proposed written contract already signed by the plaintiff, this must be treated as a written contract between the parties, and its construction was for the court; that the extrinsic facts relied upon to sustain the construction given by this court were not disputed, and there was therefore no mixed question of law and fact for the jury to pass upon (1 Wend., 457; 21 id., 643; 11 Johns., 187; Cowan v. Lindsay, 30 Wis., 5S6); and that the question as to whether the court erred in leaving the construction of the contract to the jury, was fairly raised by the exceptions taken to the instructions given, and to the refusal to give those asked by defendant. They further contended that where the verdict is not sustained by law and the evidence, it is the duty of the trial court to set it aside upon a motion properly made upon that ground. A new trial may be asked for on a case made, for misdirection of the judge, although no exception was taken to the charge at the time; and where no specific exception is taken on the trial, if, on a case made, it appears that the plaintiff ought not to have recovered, on grounds which, if they had been taken at the time, could not have been obviated, the verdict will be set aside. Rich v. Penfield, 1 Wend., 380; People v. Holmes, 5 Wend., 191; Kowvng v. Manly, 2 Abb. Pr., N. S., 377; 9Bosw., 224. The same is true when, under our practice, the judge permits a motion for a new trial to be made on the minutes of the court. Such motion may be made upon exceptions, or for insufficient evidence, or for excessive damages (Tay. Stats., 1498, § 21); and if it is denied, and an exception taken, and a bill of exceptions made containing all the evidence, this court must review the action of the trial court upon such motion. Tay. Stats., 1632, § 6. The motion for a new trial in this case was not based merely upon exceptions taken at the trial, and therefore Bta/rvng v. Brown is not in point. See Algeo v. Duncan, 39 N. Y., 313; Prentiss v. Danaher, 20 Wis., 311, 320; Whalon v. BlacMurn, 14 id., 432.