Staples v. Edwards & McCulloch Lumber Co.

Vanderburgh, J. The parties to this action entered into an agreement on the 6th day of December, 1887, under which the defendant was to purchase and furnish logs to be manufactured into lumber by plaintiff, at his sawmill, for the winter of 1887 and of 1888. The lumber was to be manufactured and sold on joint account, the defendant to advance the necessary amount of money for manufacturing the same, the title to the lumber and sales to be in its name, and the profits to be divided as follows: The defendant was, in the first instance, entitled to twenty five cents per 1,000, the balance to be equally divided between the plaintiff and defendant. Under this contract the plaintiff sawed, and delivered to the defendant, upwards of 10,000,000 feet of lumber, which the referee who tried the case finds was disposed of as follows: A small quantity was sold at plaintiff’s mill by plaintiff. The remainder was turned over to the defendant, and sent to the yards mentioned below. This is an action for an accounting of the proceeds of the business, of which plaintiff claims there is still a large sum due him. At the time the contract was made, the defendant was a large dealer in lumber. It owned several lumber yards, and was part owner or interested in a number of other yards, situated at different places in Wisconsin, Minnesota, Dakota, and Nebraska, at which lumber was purchased at wholesale prices. The lumber manufactured under the contract was in part sold to third parties, but the greater part of it was sent to the lumber yards owned by the defendant, or in which it was interested, and the bulk of it has been finally disposed of at those yards, in the usual course of business, at the current retail prices. The defendant charged itself in account with the market price of the lumber so appropriated, at wholesale, which the referee adopted as the rule by which the parties are to be governed in the final accounting. The written contract is silent in respect to the basis of the account [20] ing between the parties, that is to say, whether it should be at the wholesale or retail prices of the lumber. But the referee finds that there was a parol agreement or understanding between the parties to this effect: that the lumber so turned over to defendant, and disposed of at its yard, should be taken and accounted for by defendant at the same price for which lumber of the same character could be purchased in the market of other persons. The referee also finds that the defendant accordingly charged itself with the wholesale market price and value of the lumber sent by either party to the contract to the several yards above referred to. It was competent to prove such agreement by parol, because it related to a matter not covered by the written agreement, which does not, on its face, appear to include the whole agreement between the parties; and if the agreement was in fact so understood, construed, acted on, and carried out by the parties, it must be taken as the rule ingrafted on the contract by the parties in respect to the basis of the accounting. Such agreement may be established by the conduct and acquiescence of the parties, as shown by their dealings and course of business. The District Court found it to be supported by the evidence, on the motion for a new trial, and that fact cannot be questioned upon the record before us. When it is conceded that the evidence sustains the findings of the referee, it leaves but little for the appellate court to consider. Judgment affirmed. (Opinion published. 57 N. W. Rep. 220.)