Wausau Boom Co. v. Dunbar

Cassoday, I. Error is assigned because the court refused to allow the defendant’s counsel to open and close the argument to the jury. This court has held that the question as to “ which .party is entitled to open and close the argument is a mere rule of practice, and within the control of the courts.” Cunningham v. Gallagher, 61 Wis. 170. It is there further held that “ when, in an action to recover un-liquidated damages, the defendant confesses the cause of action and pleads in avoidance thereof, the affirmative is with the plaintiff, and he is entitled to open and close the argument to the jury.” The pleadings and proofs in this case clearly bring it within the above rule, and it becomes unnecessaiy to repeat the reasons for so holding. There are no exceptions to any portion of the charge, and no part of it is printed. We must assume, therefore, that it fairly submitted all questions of fact to the jury without error and in a manner in no way prejudicial to the defendant. It is conceded that 38,950 feet of the defendant’s logs passed below his mill, and were delivered by the plaintiff into the pocket of another mill; and that certain [139] other quantities thereof became, for a time, misplaced in the plaintiff’s boom, but were subsequently delivered at the defendant’s mill or other places by his direction or consent. It is claimed, however, that such logs so passed below the defendant’s mill, and so became misplaced, without any negligence or fault of the plaintiff and notwithstanding the exercise of all reasonable care and diligence on its part; that such passing below and such displacement were inevitable, and such as frequently occur in consequence of the sudden rise and large volume of the stream at the point in question, and the immense quantities of logs in the river above, forming great jams, wherein logs were piled above each other to a considerable depth, and many, including those of the defendant mentioned as having passed below, by reason of their texture, smallness, and becoming water-soaked, Avere forced under the boom and outside of the divide, and thus carried to other parts of the boom, and into mill-pockets below; that such delivery at other mills and in other mill-pockets, under such circumstances, was in pursuance of a well and long established usage, custom, and course of dealing by and among all parties, including the defendant, on that section of the river; and that the agreement between the plaintiff and defendant, respecting the receiving, storing, assorting, dividing, and delivering the defendant’s logs and timber in and at the plaintiff’s, booms, was made with reference to such usage, custom, and course of dealing. The principal error assigned in this case consists in the admission of evidence tending to establish such usage, custom, and course of dealing. Of course, it was competent for the plaintiff to absolutely agree to deliver all of the defendant’s logs and timber at his mill, and to pay for the value of all not so delivered, as damages for the breach. Had such an agreement, with no ambiguity, been established, it is quite likely that parol evidence of usage, custom, or course of dealing would have [140] been inadmissible to contradict or vary the terms thereof. Blackett v. Royal Exchange Ass. Co. 2 Cromp. & J. 249; Grace v. American Cent. Ins. Co. 109 U. S. 283. As tersely stated by Lord Lyndhubst, in this English case, and quoted approvingly by Mr. Justice Hablan in the other: “Usage may be admissible to explain what is doubtful; it is never admissible to contradict what is plain.” But we are cited to no evidence of any such agreement, and we find none in the record. The contract alleged in the answer would seem to be a mere request on the part of the defendant, and a general undertaking on the part of the plaintiff. The plaintiff’s charter requires it to pass all logs and timber through its booms into the river below within a reasonable time, and with reasonable diligence, except such as are Owned by any person who, on or before a time specified in each year, files “ with the secretary of the company a statement in writing,” subscribed by him, “setting forth that he desires his logs or timber retained or stored in said booms, and specifying, as near as may be, the number and quantity, and specifying the particular marks or brands thereon.” Secs. 11, 12, ch. 45, P. & L. Laws of 1811. The nature of the controversy is such that we may well presume that the' defendant filed such written statement, and that, probably, constituted the only agreement between the parties. Of course, the plaintiff was required to exercise reasonable care and diligence in receiving, storing, assorting, dividing, and delivering the defendant’s logs and timber, but, in the absence of any specific agreement to that-effect, log-owners could not expect it to perform impossibilities. J. S. Keator Lumber Co. v. St. Croix Boom Corp. 72 Wis. 62. Of course, it appears, without saying, that the plaintiff has no control over the suddenness of the rise or the volume of'the stream, or of the quantities or character of the logs and timber put in the river by owners above the booms. [141] The possibility of some logs getting below the booms in consequence of such extraordinary floods and jams is almost inevitable. The impracticability of taking logs back up the stream after having reached a point below their place of destination is very obvious. Such being the circumstances of the case, and the contract or undertaking on the part of the plaintiff being of the general character indicated, we perceive no valid objection to the admission of evidence respecting such usage, custom, and course of dealing. Such evidence, in such a case, manifestly tends to explain and make evident the understanding and intent of the parties upon matters as to which their contract is silent. Of course, such usage, custom, and course of dealing should, in the absence of actual knowledge, be so long continued, and so well known and established, and so uniformly acted upon, as to raise a presumption that it was known to both contracting parties, and that their contract was made with reference to it. Lamb v. Klaus, 30 Wis. 94; Scott v. Whitney, 41 Wis. 504; Hinton v. Coleman, 45 Wis. 165; Walls v. Bailey, 49 N. Y. 464; Sturges v. Buckley, 32 Conn. 18; Allegres Adm'rs v. Maryland Ins. Co. 20 Am. Dec. 424; Farnsworth v. Chase, 19 N. H. 534, 51 Am. Dec. 206. Here the alleged custom was fully pleaded by the plaintiff, and the defendant had an opportunity to disprove it if he could. If the contract was in fact made with reference to such custom, then there is no good reason why the defendant should not be bound by it. Governor v. Withers, 50 Am. Dec. 95. We perceive no error in the admission of such evidence. The evidence seems to be sufficient to justify a finding that the contract was made with reference to such custom or course of dealing. It is claimed that the verdict cannot be supported by any figures or theory deducible from the evidence. It may well have been found upon the theory pointed out in the plaintiff’s brief; but, however that may be, it is based upon so [142] many different matters, some of which consist of items of unliquidated damages allowable upon the counterclaim, in regard to which there may have been an honest difference of opinion, that we do not feel authorized to disturb the judgment on that ground. By the Court.— The judgment of the circuit court is affirmed.