97 Va. 265 | Va. | 1899
Lead Opinion
Camp and Wilson entered into- a contract from which the following extract is made:
“ This agreement, entered into on the 11th day of September, 1889, between Isaac T. Wilson of the first part, and W. JST. Camp, all of Hansemond county, State of Virginia, of the second part, witnesseth: That whereas the said Isaac T. Wilson of the first part, for the consideration hereinafter stipulated, has bargained and agreed to- cut, haul, and deliver to- the said W. H. Camp, the second party, from the timbered lands belonging to the Gay Manufacturing Company along the line of the Suffolk and Carolina railroad, and those on the A. & D. B. P., forty thousand feet of merchantable saw-mill logs per day, or an average of about that quantity per day, for a period of two years, or in other words about ten millions of feet for each year, seven millions feet from timber on the Suffolk & Carolina road, and three millions feet from the timber on the A. & D. P, P. at or near what is known as Hollands Comer.”
By the terms of this contract- it was expected to occupy about the period of two years in its execution, and, in accordance with it, the parties thereto commenced operations. At the end of the month the quantity of lumber cut and delivered by Wilson to Camp was ascertained, and an account made out which was paid by Camp about the middle of the succeeding month. This was the general course of business, t-hough it happened upon one or
During the progress of the trial Camp asked the court for two instructions, which are as follows:
“ First. The court instructs the jury that by the contract of September 11, 1889, there is no obligation on the defendant to furnish I. T. Wilson, the plaintiff, any standing timber, and that if they believe from the evidence that the damages sustained by the plaintiff was because of a failure to obtain, at convenient seasons, standing timber from the lands of the Gay Company, that he cannot then recover from the defendant, unless they further believe that said defendant was the cause of plaintiff’s failure to get said timber.”
“ Second. The court instincts the jury that if they believe from the evidence that monthly or other periodical settlements of accounts were made between W. FT. Camp and I. T. Wilson*268 during the continuance of the contract between them, for the purpose of showing the standing of the accounts, and ascertaining the balance due from one to the other; and further believe that such balance, when found due to Wilson, was paid to him by the defendant, W. 17. Camp, without objection on the part of Wilson to any item therein, or to the balance as thus ascertained and received, then the court instructs them that same would be an account stated, and the plaintiff is barred from recovering damages growing out of the transaction of the parties prior to said account and settlement, unless they further believe that said -balance, when accepted by said Wilson, was received by him in ignorance of the fact that suph damages had been caused, or that there was some fraud in the mailing up of said account.”
The court refused to give these instructions, and in lieu thereof gave instructions numbered 7 and 13, which are-as follows:
“ 7. The court instructs the jury that, by a true construction of the contract between Gamp and Wilson, it became the duty of Camp to use all reasonable means in his power to secure necessary rights of way, and standing timber from the Gay Company, in sufficient quantities to enable the plaintiff, with- a proper equipment of men, train and cars, &c., to cut and deliver to said Camp, under said contract, 40,000 feet of logs per day during the continuance of said contract, and if the jury believe from the evidence that said Camp, did use all reasonable means to furnish necessary rights of way and standing timber in quantities as aforesaid from the Gay Company, then his liability ceased on that account.”
“ 13. The court instructs the jury that if they believe from the evidence that monthly or periodical settlements of .accounts were made between W. 17. Camp and I. T. Wilson, during the continuance of the.contract between thenij for .the purpose of shewing the standing of the accounts,, and ascertaining the balance due from one to the other, and further believe that such*269 balance, when found due to Wilson, was paid to him by the defendant W. X. Camp, without objection on the part of Wilson to any item therein or to the balance as thus ascertained and received, and if the jury believe, from the evidence, that when said Wilson received said balance he had not notified or did not then notify said Camp of his intention to hold him responsible for damages sustained by Camp’s failure to comply with the contract on his part, then they must find for the defendant.”
The action of the court in refusing the instructions asked for by Camp, and giving those in lieu thereof asked for by Wilson, is assigned as error.
I am of opinion that the first instruction asked for by plaintiff in error should have been given. There is certainly no express covenant requiring Camp to secure standing timber from the “ Gay Co.” in sufficient quantities to enable 'Wilson to comply with his undertaking. Xor can I see that any such covenant is to be necessarily inferred from the language used in the contract. If, therefore, the contract is to be so construed, it must be by force of the fact that the parties themselves have placed that construction upon it. In a doubtful case, the construction placed xxpon a contract by the parties will be accepted hy the court; and, while, in my judgment, with respect to this contract, there is no room for such an interpretation, yet it is enough for me to say that, whether or not the parties have themselves placed such a construction upon it, is a question of fact to be proved by the evidence like any other fact, and, if controverted, to' be submitted to the jury upon proper instructions. If, therefore, I am correct in saying that the language of the contract does not by its terms admit of the construction placed upon it by the Circuit Court, but that, in order to x*each that construction, it was necessary to adopt as a part of the contract the interpretation placed upon it by the parities themselves, then the court, instead of saying that by a “ txue construction ” of the contract between Camp and Wilson, it became the duty of Camp to do
Coming, then, to the thirteenth instruction given by the court, in lieu of instruction Ho. 2 asked for by the plaintiff in error, I am of opinion that the instruction as given is misleading and erroneous. Here were transactions between parties running through a considerable period of time, and involving a number of settlements. According to the instruction, as given, if, at the first settlement of accounts between Camp and Wilson, Wilson received the money, and notified Camp of his purpose to^ hold him responsible for damages, the terms of the instruction would be satisfied, although Wilson’s conduct from that time henceforth was such as to indicate a waiver on his part of his purpose to hold Camp responsible, and thereby lulled bim into a false security. If Wilson did not intend that Camp should rely upon these recurring settlements, he should have made Camp under
The contention, however, of Wilson is that damages for which he now sties were not embraced in any of the monthly settlements made with Camp, and that the latter fully understood that lie was to be called upon to account for them upon a final settlement. It should have been left to the jury, upon the evidence, to say which version of the dealings they believed and accepted. In other words, the monthly settlements, in the absence of fraud or mistake, should have been held as final and conclusive between the parties, unless from all the evidence the
Without passing upon the remaining assignment of error, which is to the ruling of the court in refusing to set aside the verdict as contrary to the law and the evidence, we are of opinion that the judgment of the Circuit Court should be reversed, and a new trial be awarded in accordance with the views expressed in this opinion.
Riely, Cabdwell, and Buchahah, JJ., concur with Keith, P.
Dissenting Opinion
dissenting:
Isaac T. Wilson and W. R. Camp entered into a written contract under seal, by which Wilson agreed to' cut, haul, and deliver to Camp on the cars of certain railroads, from the timbered lands belonging to the Gay Manufacturing Company, twenty million feet of merchantable saw-mill logs; it being agreed that an average of about forty thousand feet per day, or an aggregate of about ten million feet per annum, was to be delivered within the period of two years.
W. R. Camp agreed to furnish Wilson with a. locomotive and sufficient 4i*on rails, switch stands and fixtures, fish plates, and spikes, and all necessary cars to carry the logs, and to pay two dollars and forty-five cents per thousand feet for all logs delivered. This suit was brought by Wilson to recover damages for the alleged failure by Camp to perform his part of the contract, whereby the plaintiff was, without default on his part, prevented from hauling all the logs, and thereby deprived of a large part of his legitimate profits.
The suit resulted in a verdict for $1,500 in favor of the plaintiff Wilson, which we are asked to set aside.
The instructions asked for by the defendant and refused, together with those given in lieu thereof, designated as FTcs. 7 and 13, will be found in the opinion of the court, and need not appear here.
The question presented by the refusal of the court to give the first instruction is the liability of the defendant Camp to furnish Wilson with the standing timber to be cut and hauled by him. It is true there is no express covenant in the written contract on the part of W. FT. Camp to furnish to Wilson the timber to be cut, but the whole spirit of the writing imports an implied covenant that he is to provide lYilson with the standing timber of the Gay klanufaeturing Company, in order that the contract between them might be carried out. That Wilson did not own the timber, or have any control over it,' appears to have been well known to Camp. Wilson was not selling-timber to Camp, but was an employee, performing the labor of cutting and hauling timber, at an agreed price per thousand feet for such work; and his agreement to cut, haul, and deliver the logs for and to Camp, and the agreement of Camp to pay him therefor import an implied covenant on the part of Camp to furnish the agreed quantities of timber for that purpose. White v. Toncray, 5 Gratt. 188. Further, that Camp was to provide the timber to be cut and hauled is the practical construction put upon the contract as shown by the dealings of the parties, and by their evidence, not objected to. There was no dealing, in respect to the matter, between Wilson and the Gay Company,' while, on the other hand, it appears that its dealing was with Camp, who admits that he “ was to furnish the timber
As contemplated by the contract, the parties settled each month the account for the logs actually cut and hauled the preceding month, Camp paying the amount shown to be due on that account, and "Wilson giving a receipt therefor. The contention of the plaintiff in error is that these monthly settlements were mutual accounts stated between the parties, and that the plaintiff cannot now go behind them to assert his claim to damages for the breach of the contract by Camp. This proposition is embodied in the second instruction asked for by the defendant, the rejection of which constitutes the second assignment of error.
An account stated is an agreement between persons who1 have had previous transactions, fixing the amount due in respect of such transactions, with a promise either express or implied on the part of the debtor to pay the balance ascertained to be due. The minds of the parties must meet as in making other agreements, and they must both assent to the account, and the balance, as correct. An account stated is not, however, absolutely conclusive on the parties. It establishes prima facie the accuracy and correctness of the items, and unless this presumption is overcome by proof of fraud, mistake, or error, it becomes conclusive; but the converse of this proposition, namely, that an account stated may be impeached by fraud, mistake, or error, is very well .settled. See on this subject the valuable note, and authorities there cited, by Mr. Freeman to Lockwood v. Thorne (N. Y.), 62 Am. Dec., 85; also, Perkins v. Hart, 11 Wheat 237. In the latter ease, it is said, in speaking of the conclusiveness of a settled account, “ If it be confined to particular items of account, it concludes nothing in relation to other items not stated in it.”
In the case at bar the contract provided that all logs cut
That Camp did not himself regard the last monthly payment for logs hauled, as a final adjustment "of all matters between the parties, is shown by the fact that, several months afterwards, he found on his books a balance against Wilson, antedating the last settlement for logs hauled, amounting to $60 or $70, and presented the claim to Wilson, and demanded its payment. Yrilson replied: “ I am not going to pay it; you owe me a lot more than that.”
The evidence satisfactorily establishes that only a settlement for logs hauled was contemplated by the monthly accounts adverted to, that the parties never intended those settlements as
Camp and Wilson, not having understood that the monthly settlements for logs hauled were final adjustments of all matters between them, the court cannot disregard the understanding of the parties themselves, and decree an adjustment between them contrary to their own understanding in the matter,
There is no conflict between this view and the principle laid down by this court in the case of American Mang. Co. v. Virginia Mang. Co., 91 Va. 272. In that case the parties were operating under a contract for mining and shipping ore, and were to be paid every month for the number of tons of ore taken out and delivered the preceding month. It was not clear from the contract whether the ore was to be weighed as it came wet from the washer, and a royalty of $2 per ton paid on that weight, or whether it was to be weighed after it dried out, and the royalty paid on its dry weight. The ore was weighed as it came from the washer, and shipped, and it was also weighed by the railroad company when it reached its destination, and upon such railroad weights at the place of destination, the freights were paid, the royalties adjusted, and each month the account settled, and a receipt taken in full for the amount shown to be due. The defendant frequently made objection to the deductions made on the weights at the place of shipment, but continued during a period of seven years to receive the monthly statements, returns, and payments, and to give receipts in full for the balance due each month. This court very properly held that, although the method of ascertaining the weight of the ore may not have been in accordance with the contract, yet that the long acquiescence of the defendant in the method of weighing adopted, with full knowledge of all the facts^ was a waiver of its right to insist upon the terms of the contract. The question involved was the right of the defendant, after acquiescing
In the case at bar, the only fact to be known, in order to make the monthly settlement provided for in the contract, was the number of feet of timber hauled the preceding month. Those settlements did not depend upon the amount Camp might eventually owe on account of damages for failing to fully perform his obligations under the contract.
If in the case at bar "Wilson was seeking to go behind his settlements for the logs hauled, and to recover upon another, and different mode of measurement, the case cited -would be directly in point, and would effectually deny his right to do so. 'This suit was not brought, however, for any such purpose. The settlements for the logs hauled are admitted to be correct. The suit was brought to recover damages from Camp for his breach of contract, in failing to furnish Wilson with the facilities agreed upon for cutting and hauling the logs, thereby causing him great delay, and depriving him of the ability to deliver twenty million feet within two years, as provided by the contract. Of this default on his part Camp' had due notice, and was repeatedly, during the progress of the work, warned by Wilson that he would have to compensate him in damages for whatever loss he might suffer in consequence of such default;
The third assignment of error is the court’s refusal to set the verdict aside, first, because contrary to the evidence;"and, second,, because excessive.
In this action of the court there was no error. The evidence tended strongly to sustain the plaintiff’s claim, and, upon -yell settled principles, the verdict cannot be set aside upon either of the grounds urged.
Tor those reasons I am of opinion that the judgment of the Circuit Court should be affirmed.
Reversed.