Hammond v. John H. Kaiser Lumber Co.

Nee,wiN, J. The facts in this case are undisputed, and the only question for determination is whether under the contract and findings the plaintiff was entitled to recover ninety [192] cents per thousand feet for loading on cars the logs decked during the logging season of 1907 and 1908. The defendant furnished the fifteen cars per day agreed to he furnished during the season and the plaintiff loaded from sleighs the cars furnished, and in addition to the logs so loaded decked 1,316,482 feet, and at the request of defendant afterwards loaded on cars the logs so decked, and claims in his second cause of action $1,184.83, being ninety cents per thousand for loading the decked logs. The plaintiff claims that, a ■quantity of logs in excess' of fifteen cars per day having been hauled and decked, he was entitled to ninety cents per thousand for loading on cars such decked logs. On the part of ■the defendant it is insisted that the plaintiff could only recover ninety cents per thousand for loading such logs as were ■decked because of failure to furnish fifteen cars per day. The controversy turns upon the contract. The defendant bound itself to furnish only fifteen cars per day, and it seems clear that it was under no obligation to furnish more. John O’Brien L. Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337. The next question which arises is whether the decking mentioned in the contract had reference to the decking in case of failure to furnish the fifteen cars or decking, of logs hauled in excess of the fifteen cars. The contract, after providing time, place, quantity, and character of logs to be put in during the season, further provided that plaintiff should cut, mark, haul, scale, and load on cars of the Chicago, St. Paul, Minneapolis & Omaha Bailway Company, near Winter, in Sawyer county, Wisconsin, all the saw-log timber on the described land. And the plaintiff further agreed to load said logs in such manner that they might be safely transported to Eau Claire by the railroad company, provided suitable cars and equipments were furnished by the party of the second part. Then follows the provision set up in the statement of facts to the effect that the defendant agreed to furnish a continual service of fifteen cars each day, and in case of failure to deliver said cars the [193] party of the first part agreed to deck all logs not loaded on cars at track, and that when said logs were so decked it was understood that the party of the first part had fulfilled his contract in the same particular as though said logs had been loaded on cars. The contract, after providing as to manner of cutting, scaling, reporting, and inspecting and other details of operation, further provides for payment of $9 per thousand for all logs hauled and loaded on cars or decked “as aforesaid.” . . . “That in the event of it being necessary, on account of failure on the part of the party of the second part to provide cars as aforesaid for the party of the first part as the logs are hauled on sleighs for the purpose of loading them on cars, and there is a surplus of logs accumulated which has to be decked, it is at the option of the party of the second part whether they load said logs so decked in the spring themselves or allow said party of the first part to load said logs on cars at the price of ninety cents (90 c.) per thousand feet, and the party of the first part hereby agrees that he will so load said logs at above mentioned price of ninety cents per thousand feet in the event of his being instructed to do so by the party of the second part. Payment of same to be made at completion of the work.” It is the opinion of the court that the foregoing provision of the contract respecting the payment of ninety cents per thousand for loading on cars the decked logs has reference only to logs decked in case of failure to furnish the fifteen cars per day agreed to be furnished. The contract by its terms seems to confine the pay for loading decked logs to those decked in consequence of failure to furnish cars as agreed by defendant. The provision in the contract to furnish a continual service of fifteen cars per day as may be required limits the number to fifteen cars, and the promise to pay for decking is confined to logs decked in case of failure to furnish the cars agreed to be furnished. It being conceded that fifteen cars per day were furnished as agreed, the contract gave no right to charge [194] for loading tbe decked logs in question. In face of tbe express agreement that tbe defendant was bound to furnish a continual service of fifteen cars a day as required, it cannot be said that it was under obligation to furnish other cars, and tbe pay for loading decked logs was confined by tbe terms of tbe contract to logs decked because of failure to furnish a continual service of fifteen cars per day. Boyington v. Sweeney, 77 Wis. 55, 45 N. W. 938, is relied upon by plaintiff. In that case it was found that defendant was bound under tbe agreement to furnish tbe cars and it failed to do so. Here tbe defendant furnished tbe cars agreed to be furnished by it, and tbe expense of loading decked logs was not caused by any failure on tbe part of tbe defendant to furnish, cars. Tbe court is of opinion that plaintiff is not entitled to recover on tbe second cause of action, therefore tbe judgment is right. By the Court. — Tbe judgment is affirmed. '