Phalen v. Hershey Lumber Co.

Winslow, O. J. The errors assigned by the appellant are very numerous and all of them have been carefully examined. Such of them as are not specifically treated, in this opinion must be considered as overruled, not as overlooked. The sweeping claim which is made to the effect that the referee’s report should have been wholly set aside because of bias, prejudice, refusal to consider evidence, or similar grounds must be rejected without further comment than to say that we have discovered no reason to doubt that the referee, while evidently mistaken as to some of his conclusions, as will appear later, attempted to give the case a fair, conscientious, and painstaking trial. The claim that the referee erred in finding that the oral modification of the written contract alleged by the plaintiff to have been made in the spring of 1900 was not in fact made must also be overruled. Upon this question there was a direct'conflict of evidence between the plaintiff on one side and Mr. Gardner, the defendant’s agent, upon the other; and, while there was some evidence from other witnesses tending to corroborate the plaintiff’s story, still we are unable to1 say that the referee’s conclusion was clearly against tire preponderance of the evidence. — 578 — Parsing from these general claims of error, we proceed to take up the more specific claims in their natural order. 1. There are some very palpable and important discrepancies or contradictions between the referee’s, eleventh and fifteenth findings of fact which were entirely overlooked by the trial court. By the eleventh finding the referee found that the total amount of logs driven by the defendant in 1900 was 3,538,0Y0 feet (of which 2,866,180 feet were the logs cut and banked by the plaintiff, 353,330 feet were logs belonging to one Staples, and 318,560 feet were defendant’s logs cut by others than the plaintiff), and that the total reasonable expense of the whole drive down to the St. Croix river was as.follows: General expense of drive. $4,293 62 Paid for damages to owners of overflowed lands.. 635 00 Paid one half cost of repairing dams. 228 50 Total . $5,157 12 The referee further found in this finding that of this total the plaintiff should be charged with the same proportion as the amount of the logs cut by him bore to the whole amount of logs driven, which proportionate share was found to be $4,177.79. This was manifestly the correct theory on which to determine the proper charge against the plaintiff, but when the referee came to state the credits to be allowed to each party in the fifteenth finding he credited to the defendant the whole expense of the drive of 1900, to wit, $5,157.12, instead of the proportionate amount as determined by the eleventh finding, to wit, $4,177.79. The error here is manifest, and it is equally manifest that the eleventh finding, which is a specific finding of fact, must be held to be controlling over the fifteenth, which is a mere recapitulation in figures of conclusions from the facts previously found. It was evidently a clerical error or discrepancy which should have been corrected without formal exception, but for some reason it remained unnoticed by the court. The court upon review — 579 — simply Reid that two items amounting to $204.14 were improperly included in the general expense of the drive, and that the charge of $228.50 for repairs of dams should not have been allowed, and with these deductions approved the charges for the drive contained in the fifteenth finding. The mere statement of the facts shows the error. The eleventh finding, except so far as its items were changed by the court, must control. Striking out of the expense of the drive the items disallowed by the court, we find that the total cost of the drive .of 1900 was $4,724.48 and that the plaintiffs proportionate share thereof was $3,827.21, which should be charged against him, instead of $5,157.12 as charged by the referee, or $4,724.48 as charged by the court. In connection with this item another contention is made, which if sustained would further reduce the amount to be charged against the plaintiff on account of the drive of 1900. It is said that the amount of the Staples logs was 452,000 feet instead of 353,330, and the evidence on the subject, though meager, seems to substantiate the claim. We find, however, no exception which authorizes us to review this finding. In his exceptions to the findings of the referee the plaintiff excepted to the eleventh finding of fact, “except quantity of logs driven and the ownership of the enumerated parts,” thus specifically omitting to find any fault with the finding as to the quantity of logs driven. . We find no other exception in the record which raises this question, hence we conclude that it is not now open. 2. It is claimed that the item of $635 for damages paid by the defendant to a number of riparian landowners should not have been allowed. The referee found that these payments were necessarily made in order to enable the defendant to finish the drive within a' reasonable time. The testimony in support of the item is to the effect that, after the logs, had reached Yellow Lake, the defendant was threatened by a number of landowners that, unless damages for the overflow — 580 — ing of their lands were paid them before the logs got through the lake, they -would cut the booms or tear out the dam, and that under the stress of these threats the sums were paid. It is quite true that there was no legal liability for such damages unless the drive was negligently made ([Field v. Apple River L. D. Co. 67 Wis. 569, 31 N. W. 17), and we have had some doubt about the allowance of this item. If, however, the danger of serious and prejudicial delay in the driving of the logs was apparently real and the defendant’s apprehension well founded, as the referee and the court concluded, we incline to the view that reasonable payments of this nature were justifiable and properly allowed. We reach this conclusion more readily in view of the fact that Gardner testified that, before the defendant undertook the drive, he talked with Phalen on the subject, and that it was understood that some damages would probably have to be paid as a part of the expense of the drive. 3. The referee credited the plaintiff at the contract rate with 1,3Y6,920 feet of logs, which he found to be the total amount of logs left in the woods by the plaintiff either skidded or not cut. The plaintiff claims that the amount of skidded logs was shown without serious dispute to be 1,500,000 feet and his claim seems to be correct. The complaint alleged that the amount was 1,500,000 feet. The first counterclaim in the answer alleged that the plaintiff cut and loft in the woods 1,500,000 feet. The referee found in his sixth finding that the plaintiff left in the woods, cut and skidded but not banked, 1,500,000 feet, and a scaler testified directly that he ascertained the quantity and found it to be 1,500,000 feet. As against this there was simply an entry in an account book of the defendant, which was not verified by any one with knowledge of the facts, which recited the number of feet as 1,3Y6,620, and the opinion of one Gray, who banked the logs in 1901, that the total amount was about 1,3Y0,000 feet. In this state of the pleadings and proof — 581 — there can be no doubt that the plaintiff should have been credited with 1,500,000 feet, which would give him an additional credit of $660.09. 4. The last items complained of which we find it necessary to consider at any length are the credit- to defendant of $2,758.24: for cutting and banking uncut and skidded logs and the credit of $3,658.71 for driving the last-named logs in the log drive of 1901. These charges were found by the referco to be just, fair, and reasonable prices for the work done, and the question is whether such findings are sustained by the evidence. Upon this question we receive no aid from the respondent’s brief, although it is quite fully argued in the appellant’s brief with references to the printed case. This has necessitated a wearisome examination, page by page, of the bill of exceptions, without aid from the respondent, in the effort to ascertain what testimony was given on the question, an effort which this court ought not to be compelled to malm. The evidence as to the reasonable value of banking the skidded logs is very meager. No witness appears to have testified directly as to the reasonable value of such work. One Gray did the work under a written contract for $3 per thousand, and the defendant claimed credit for this amount, but there was no testimony that this was a fair or reasonable price. The work consisted simply of hauling the logs from the skids in the woods to. the river. A man with a four-horse team made two or three trips a day according to the distance. A little over 100,000 feet of the amount was still standing and had to be cut, but no difference was made in the contract price on this account. There is testimony as to the amount which a team thus employed would haul and as to the expense of the team and man, and from this it appears that the total expense of banking the skidded logs could hardly exceed $1 per thousand. Making all due allowance for the cutting of the small amount of standing timber and for unexpected delays or circumstances — 582 — interfering -with, the work, we are unable to see how a charge in excess of $1.50 per thousand can be sustained. On this basis this item should be allowed at $2,250, a reduction of the referee’s credit of $508.24. The evidence as to the reasonable expense of the drive of 1901 is, if anything, more meager and unsatisfactory than the evidence as to the banking of the skidded logs. These logs formed a part of a large drive made by the defendant. The defendant’s manager, Mr. Campbell, testified that the total cost of the drive was $10,631, and that the total amount of logs driven was 3,500,000 or 4,000,000 feet, but just what the amount was he was unable to tell. His recollection was that the expense was about $2.30 per thousand, and here his evidence practically ceases. There were no difficulties shown in driving the river in 1901 greater than those present in 1900. About two thirds of the skidded logs were landed by Gray nearly twenty miles below the landing where Phalen banked his logs, and consequently escaped many of the difficulties of the drive. The total cost of the drive of 1900, including damages paid and repair of dams, was but $1.45 per thousand feet, and the defendant charged Staples but fifty cents per thousand. Two experienced river drivers, Saunders and Lampman, testified on behalf of defendant as to the cost of driving logs from McDonald’s bar to the St. Croix river, and fixed it at $1.60 and $1.50 respectively. In view of this testimony the allowance of the referee seems entirely too large. Adopting the highest figure placed by the defendant’s witnesses, viz., $1.60 per thousand, we find that this item should be $2,400 instead of $3,658.71, a reduction of $1,258.71. Wq have now stated all the changes which we find it necessary to make in the account and are ready to state the result. Adopting the method, used by the trial court and taking the referee’s statement of account in the fifteenth finding as a basis, there should be added to the credit side of the plaint583 ifPs account for the skidded and uncut logs $660.09, making the total of the credit side $24,095.56, and there should be deducted from the debit side the excess charged on the drive of 1900, $1,329.91; the excess charged on the banking of skidded and uncut logs in 1901, $503.24; the excess charged on the drive of 1901, $1,258.71; the damages allowed by the referee but disallowed by the court, $1,500; making a total reduction of $4,591.86, and reducing the total dehits to $22,225.02. Subtracting the total debits from the total credits there remains a credit to the plaintiff of $1,870.54 for which he should have had judgment. By the Oowrt. — Judgment reversed, and action remanded with directions to enter judgment for the plaintiff for $1,870.54, as of the date of the former judgment, to wit, April 5, 1907.