58 Pa. 186 | Pa. | 1868
The opinion of the court was delivered, May 7th 1868, by
In the outset of the opinion it is proper we should notice the manner in which this case is brought before us. The controversy turns upon facts, and involves a variety of circumstances. Eifty-eight witnesses were examined, whose testimony fills one hundred and twenty:three pages of solid small type. Much of the evidence is conflicting, and relates to a peculiar local business. Such a case ought to have gone to a master for a report upon the facts. We may not be able to do justice to it, as to us all witnesses appear alike when their depositions come before us on paper. No judge of the Common Pleas should take such a case on the evidence, without a reference first to a master, to sift the testimony and collate and report the facts. He should appoint some one competent to act both as examiner and master. Having heard the witnesses and familiarized himself with the case in every step" of its progress, the -master is more competent to determine upon the credibility of opposing witnesses, and to judge of the evidence. Being fully possessed of the case, the dispute is apt to be confined to the real grounds of controversy. It is to be hoped
After a careful examination of the evidence (a labor of several days), we have come to the conclusion that the estimate of the timber made under the contract is too uncertain and doubtful to warrant a decree of specific performance. The contract falls within the scope of a chancellor’s jurisdiction, and has been so far executed as to entitle the plaintiff to a decree of specific performance, but for a single fact. The parties, by their agreement, made its execution depend upon a count of the trees on the land, and an estimate of the quantity of lumber contained in them, making the payment dependent on the number of thousand feet to be found by the estimate. They agreed upon the persons to make the count and estimate the quantity, and provided for a new selection of persons in case of their failure to act. The three persons appointed did act to a partial extent, and a report was signed by the requisite number. It is the real character of this report which is the subject of dispute.
The sale of the timber is the true subject of the contract, and the count and estimate ■ are only the means of its execution. Equity, therefore, to prevent a failure of the principal matter, might, in a proper case, furnish a means of ascertaining the quantity of lumber, if the contract made had failed without a serious fault on part of the plaintiff, or. its- execution had become impossible through fortuitous causes. But the plaintiff founds his bill upon the contract-means, asserting that-a fair and true estimate had been made according to its terms. He must show, therefore, a full and fair performance of the contract-mode of ascertaining the price of the timber. Without this it is impossible to execute it specifically, payment of the price being as indispensable as the conveyance of the timber.
In such a mass of evidence it is impossible to discuss the facts in detail within any proper limits of an opinion. It is sufficient to indicate the points of doubt cast upon the report by the entire volume of the testimony. The first matter to be noticed is the admitted defect in the report, apparent on its face, to wit, the entire omission to estimate the cherry timber on the first-mentioned tract. Had this been the only objection to the report, and merely the result of an oversight or misapprehension, equity might have aided the plaintiff by means of a supplemental report. But this objection, furnishing a direct ground of assault upon the report, is strengthened by the cloud thrown over the whole estimate by the conduct of the appraisers and of the plaintiff. That Hamlin, one of the appraisers, did not unite in making up the estimate which resulted in the report of the other two estimators, is beyond a doubt. He participated in counting the trees and estimating the number of logs each would cut, and also set down
Next we have the conduct of the plaintiff. That he undertook to get up the report in the absence of Hamlin, by assisting Hagadorn and Blair to make it, is not questioned; but the question is how far his interference may have affected the result. It is quite possible he copied correctly from the book the count and observations made upon the ground, so far as he assisted to make out the paper from which he and Hagadorn calculated the quantities; and it is possible he made the calculations correctly; but how can we know this confidently ? Hagadorn and Blair may have felt satisfied with his work, but it is still true that he did that which it was Hamlin’s province and not his to do. It is just here that the evidence of the actual quantity of the timber on the ground makes its deepest impression. The report estimates the quantity of pine lumber at 400,000 feet, and of cherry at 218,940 feet. Since the report, the trees have been counted and estimated by various witnesses, many of them experienced lumbermen, at 950,000, 965,000, 979,000 and 1,053,000 feet of pine. One estimate,
The decree of the court below is therefore reversed, and the bill of the plaintiff dismissed at his costs, but without prejudice to the plaintiff in any future proceeding upon the contract by action, bill or otherwise.