Mowatt v. Wilkinson

Dodge, J. 1. The first error assigned is the admission over objection of testimony to the effect that it is the custom at Ashland to saw rafts of logs in the order in which they come into the boom, and that if the sawing of the logs of one proprietor is interrupted, and those of another proprietor are taken up, the latter are completed before returning to the former. This testimony is, by the witness who gives it, confined to cases where the contract does not provide for [179] Continuous sawing. Counsel do not seriously disagree as to the general rules governing the admission of evidence to prove custom where there is an express agreement. Such custom cannot be proved to vary the terms of the agreement if they are definite and unambiguous, but only to explain and make definite that which the contract leaves ambiguous or unexpressed. Under that rule the evidence in question seems to have been clearly improper. The contract was not silent as to the rate of sawing, but provided that the plaintiff should saw defendants’ logs “ as fast as I can ”; “ neither party to be held to this agreement in case ■of fire or accident unavoidable.” No ambiguity lurks in the expression “ as fast as I can.” It was the duty of the plaintiff to put defendants’ logs through his sawmill without interruption, except for causes making such progress substantially impossible. The evidence thus complained of was further objectionable for that it applied to contracts silent ■on the question of expedition. The witness was not asked whether any, and if so what, custom prevailed under a contract like this, that required sawing “ as fast as I can,” but merely with reference to contracts which did not provide for continuous sawing. The admission of this evidence was ■error which might well have affected the verdict of the jury upon the question of defendants’ liability for damages for the ■alleged breach of contract on their part in taking certain of their logs to another mill to be sawed. 2. Appellants also assign as error the action of the trial •court in substantially taking from the jury consideration whether there had been an- accord and satisfaction preceding the commencement of the suit. The court did this on the ground that no accord and satisfaction was pleaded, and that the defendants’ attitude in counterclaiming damages for unworkmanlike sawing and for failure to properly store and care for logs in compliance with the contract was inconsistent with the claim of accord and satisfaction. In [180] this ruling the court was clearly correct. While it is true that pleadings may be amended to meet the case made by evidence admitted without objection, the evidence upon which accord and satisfaction is predicated in this case was of an interview at which a payment of $100 was made, for which the complaint did not give credit, and for which the answer claimed credit as pajrment. It was admissible upon the issue of payment, and no suggestion was made at the time of its introduction that it served any other purpose.’ Meanwhile the defendants continued to offer evidence in support of the counterclaims above mentioned, demanded their submission to the jury, upon instructions with reference thereto, and, for all that appears in the record, may have been accorded some allowance upon those counterclaims. Evidence thus admitted under circumstances to exclude the idea that it is offered to support a defense or cause of action not set up in the pleadings, and inconsistent therewith, should not justify amendment of pleadings at the close of the trial to bring in such new issues. 3. A claim is made that the trial court committed error in assuming fifty cents per thousand feet as the profit on sawing logs for which the jury had allowed damages to the plaintiff, and in measuring a deduction from the verdict by that figure, when there was evidence which might have justified the jury in adopting a higher rate. This error, if any, could not have been prejudicial to the defendants, for the allowance made by the court was for an assumed excess of logs over the 8,000,000 feet mentioned in the contract. In this the court made a mistake. There was no excess of logs over 8,000,000 feet. The lumber produced therefrom slightly overran that total, but the logs were considerably less than 8,000,000 feet. There was therefore no reason for any deduction, and defendants could suffer no legal injury because the deduction made by the court was less than it [181] might have been on their theory, when they were entitled to no deduction at all. For the first error assigned and discussed, the judgment must be reversed. By the Court.— Judgment reversed, and cause remanded for new trial.