Richardson v. Single

Cole, J. We fail to see any force in the objection that the [53] accounting between the parties was wrong, or in violation of equity rule No. 71. -See 2 Tay. Stats., p. 2025. That rule provides that parties accounting before a commissioner shall bring in their respective accounts in the form of debtor and creditor, etc. The cause was referred to John Sturapf, who was agreed upon by the parties as the referee, to take the testimony, state the account, and report the same to the court. The parties went before the referee and rendered their accounts, no objection whatever being taken to the form or manner in which the accounts were rendered. The complaint fully set forth all the matters constituting the plaintiff’s claim, and the complaint was not denied. This would seem to be sufficient to inform the defendant of the nature of the plaintiff’s account; at any rate we think no more formal account on his part was necessary. Besides, the parties were examined before the referee in regard to their accounts, and in respect to their various dealings with each other. The circuit court seems to have reviewed the report, and to have examined the testimony, and made its finding, wherein the account between the parties is fully restated. If the referee had improperly allowed or disallowed any item in the account, the whole matter was before the court for correction. Under these circumstances, there was no error in the refusal of the court to again refer the cause to the referee because of an irregularity in first stating the account, or for any failure to comply with the rules upon the subject, if any such irregularity or failure there were. There was certainly no necessity to refer the cause back for the purpose of taking the newly discovered evidence, in view of the fact that the counsel on the other side stipulated that such testimony might be taken by the referee at any time within thirty days, and reported as a part of the evidence. The first error, therefore, assigned for a reversal of the judgment, is not well taken, and must be overruled. This brings us to the question whether the circuit court adopted a wrong basis for the adjustment'of the accounts be [54] tween tbe parties, or placed a wrong construction upon tbe written contracts which are tbe foundation of tbe action. Tbe plaintiff claims that according to tbe terms of tbe written agreement dated November 8, 1871, be was to be paid by tbe defendant $14 per thousand feet for all tbe lumber which be should manufacture and run to market; and that be was to have, besides, one-half of tbe profits on tbe lumber transactions. This is certainly tbe plain reading of that contract; and the accounts between tbe parties were adjusted upon that basis. This contract should doubtless be construed in connection with the Goodhue contract which bad previously been made. When so construed, it is clear to our minds that tbe circuit court stated the accounts between tbe parties correctly. Tbe court in substance decided that tbe defendant was to receive tbe $12 per thousand feet on tbe one-third part of tbe lumber taken by Goodhue, and pay tbe plaintiff $14 per thousand feet on all tbe lumber which tbe latter should run to market, including tbe portion taken by Goodhue; and-that tbe expense of stumpage and profits on tbe transaction should be borne and divided equally. Tbe contract is not susceptible of any other interpretation than this, without doing violence to tbe language. But it is said, in opposition to this construction, that it could not have been tbe intention that tbe defendant should pay tbe plaintiff $14 per thousand feet on tbe lumber which was taken by Goodhue. We must look at the language used, to get at tbe intention of tbe parties. We find this clause: “And tbe said party of tbe second part [defendant] agrees to pay tbe said party of tbe first part [plaintiff] tbe sum of $14 for each and every one thousand feet so put in and run to market.” This language is too explicit and unambiguous to admit of doubt. It is not alleged in tbe answer that there was any fraud or mistake in tbe contract, and it is therefore idle to claim that it does not express tbe real intentions of tbe parties. And to say that tbe words “ each and every thousand feet ” are limited, and applicable to only two55 thirds of the lumber put in and run to market, is taking a most unjustifiable, if not unexampled, liberty with-contracts. It would be an unpardonable stretch of judicial power for the courts thus to modify and change the solemn contracts of parties. As the terms, therefore, of this contract are as strong and comprehensive as language can make them, it is impossible to say that the Gfoodhue lumber was not included in the clause. It is suggested that there was a modification of the contract, or that the plaintiff waived its conditions. There is no evidence from which such an inference can be made. An appeal was made to this court, by the learned counsel, to relieve the defendant from the hard and unconscionable conditions of the contract. The defendant asked for no such relief in his answer, and has not adduced the least scintilla of proof that he was in any way imposed upon in making the contract. Again, it is said that the plaintiff should be charged with the whole expense of stumpage. But we find no authority for doing that in the contracts. A further objection is taken, that the evidence shows that the plaintiff failed to perform the contract on his part. This position is not sustained by the proofs in the case. True, the defendant made advances to carry on the business, over and above the amount specified in the contract. But this was done under the verbal agreement stated in the answer, lie says he was to make advances, and that the plaintiff agreed to repay them with ten per cent, interest. The circuit court allowed interest on the advances according to the contract. As the account seems to be stated by the circuit court according to the terms of the contracts, the judgment must be affirmed. By the Oouvt.— Judgment affirmed.