Mulliner v. Bronson

Mr. Justice Craig delivered the opinion of the Court: This was an action of assumpsit, brought by Charles M. Bronson, in the Adams circuit court, against Edward S. Mulliner, to recover a balance claimed to be due for a certain quantity of lumber which plaintiff had sold and delivered to defendant. The declaration contained the common counts, and on a trial before a jury the plaintiff recovered a judgment for $600, which, on appeal, was affirmed in the Appellate Court. It appears from the evidence, that on the 28th day of September, 1881, Bronson and Mulliner entered into a contract in writing, under which Bronson agreed to move his saw-mill, and set it up in the sycamore timber growing on land belonging to J. R. Cronk, five miles north-west'of Mendon, and saw for Mulliner two hundred and twenty thousand feet of lumber. The contract contained this provision': “ “Mulliner to measure said lumber after it is delivered, dry, at his yard in Quincy, Illinois, and to measure such, only, as is absolutely clear, and will work into tobacco boxes. ” The lumber was sawed and delivered, but it was contended by the defendant that a portion of it was not absolutely clear, and he was not bound to measure and pay for that portion; while,, on the other hand, plaintiff claimed that the quality of the lumber complied with the contract. On the trial, the court ruled that the condition of the lumber before it was shipped was immaterial,—that the evidence must show the lumber, after it was delivered at the defendant’s yard, in Quincy, complied with the contract; but the court also admitted evidence of witnesses who saw the lumber after it was sawed, and while it was being shipped, as tending to establish the quality of the lumber delivered,—and the admission of this evidence is relied upon as error. While it is true, under the contract, that the quality of the lumber was to be determined on the measurement at defendant’s yard after it had been delivered, still, where witnesses saw the lumber after it was sawed, inthe timber, and saw it when it was being shipped, such evidence was competent tending to prove the quality of the lumber after it had reached the possession of defendant, and we think such evidence was properly admitted. If the lumber was clear after it was sawed and placed on wagons or cars for shipment to defendant, it could not become different or other than clear lumber on its arrival. The lumber was hauled in wagons some five miles from the mill, to a station on the railroad, and there shipped on cars. The men who loaded the lumber on wagons, and unloaded onto the cars, would doubtless form an opinion as to its quality, and the facts thus obtained were competent evidence tending to show the quality of the lumber when it was to be-measured in defendant’s yard. If the lumber was damaged by shipment, that might readily be proven. It is also contended that on the trial the presiding judge-made remarks and expressions of opinion that tended to influence the jury in making up their verdict. This was a second trial of the cause. An appeal was taken from the-judgment rendered on the first trial, to the Appellate Court, and the judgment was reversed, the Appellate Court holding that the circuit court had not placed the proper construction on the contract. On the last trial, when the construction of the contract again arose, the circuit judge remarked that he had not changed his opinion as to the proper construction to be placed on the contract, but the Appellate Court had decided the question, and the circuit court was bound to follow the-decision. Other remarks of a similar character were made-during the trial. The remarks which were made by the circuit court were uncalled for by any question which arose in the case, but whether they should be regarded as error for which the judgment should be reversed, it will not be necessary to-determine, for the reason that the record shows no exception whatever taken to the remarks so made. If the appellant desired to raise the question as to the right of the circuit-judge to make the remarks, he should have excepted at the-time; but, under our practice, if he made no objection at the time, his silence will be regarded as a waiver of all objection that might have been made to what was said by the court. Objection has been made to the decision of the court in. instructing the jury. It is claimed that plaintiff’s second. instruction is faulty, because it submits the construction of a certain verbal contract to the jury. This is a misapprehension of the instruction. The jury were merely directed that if they found, from the evidence, that a part of the lumber was furnished on a verbal agreement made subsequent to the written contract, then they should find, from the evidence, what the terms of the contract were, and be governed by it. We perceive nothing improper in this charge to the jury. The third instruction, it is claimed, nullifies that clause of the contract which provides for the measurement of the lumber by the defendant. The instruction directs the jury that the measurement should be in accordance with the requirements of the contract,—that the defendant had no right to reject lumber which complied with the contract .because he did not consider it of that quality specified in the agreement. We think this was correct. While the defendant had the right to measure the lumber and pass upon its quality, he was not the sole judge, nor was his decision beyond review. If lumber was delivered, which, as a matter of fact, complied with the contract, he was bound to receive it, although in his private judgment it might not be of that quality which the contract required. We perceive no substantial objection to plaintiff’s eighth instruction. The modification of defendant’s fifth instruction, by striking out the words, “in his judgment, ” was done with the view to inform the jury that the decision of defendant in measuring the lumber as to its quality, was not absolutely final, but was subject to review, and as we have heretofore said, we regard this a correct interpretation of the contract. The instructions, as a whole, presented the law as favorably to the defendant as he could expect or desire, and in this regard he has no just ground of complaint. The judgment of the Appellate Court will be affirmed. Judgment affirmed.