Cody Lumber Co. v. Coach

146 P. 973 | Or. | 1915

Mr. Justice Benson

delivered the opinion of the court.

1. Counsel for plaintiff contends that, when the cross-bill in equity is dismissed, the court has no jurisdiction in either the action at law or the suit in equity, to render a judgment upon matters constituting a cause of action at law, and cites, in support thereof: Small v. Lutz, 34 Or. 131 (55 Pac. 529, 58 Pac. 79); Finney v. Egan, 43 Or. 3 (72 Pac. 136) ; Hill v. Cooper, 6 Or. 181.

In the case óf Small v. Lutz, the court simply held that, when the cross-bill does not state facts entitling the plaintiff to equitable relief, the court does not acquire jurisdiction but must dismiss the suit and remand the parties to their legal remedy. Mr. Justice Bean in this case says: '

“If the cross-bill had been sufficient to give a court of equity jurisdiction, as the stipulation assumes, the decree therein determining the rights of the parties would have been conclusive in a law action without any stipulation of the parties to that effect.”

In the case of Finney v. Egan, 43 Or. 3 (72 Pac. 136), there was no question of the dismissal of a cross-bill involved. The court determined the equitable rights of the parties, but made no decree upon the question of damages, and this court held that, in the absence of injunction, the law action might proceed for the settlement of that issue.

In the case of Hill v. Cooper, 6 Or. 181, the question raised' heré is not in any sense involved.

In the case at bar it is conceded that the cross-bill states a good cause of suit for equitable relief, and the. trial court properly exercised its equitable jurisdiction in hearing and. determining the issues raised by the pleadings. The court did not dismiss the cross-bill, but, having heard the evidence, proceeded, in accordanee with the stipulation of the parties, to a final determination of the matters at issue. We must consider, then, the final judgment of the court, which might perhaps have heen more aptly termed a decree, and see whether or not it constitutes a correct determination of the controversy.

2. It may be said without hesitation that the contract provides that any errors, either by way of overestimate or underestimate, caused by inaccuracy in the landing scale of the logs, is to be determined semiannually from the sawmill tally, except where the party of the second part shall sell the logs, in which case the number of feet sold in the log shall be determined by the scale settled for by the purchaser. Plaintiff contends that this has not been done, and that an accounting had in accordance with this clause of the agreement would entitle it to a deduction of about $10,712.35 from the amount claimed by defendants as due upon the notes. The evidence discloses that the plaintiff, for a time, conducted a sawmill of its own, in which the logs cut from defendants’ land were manufactured into lumber; that this mill was subsequently destroyed by fire, after which the timber was sold' to various purchasers in the log, or sawed for plaintiff in the mills of others. The greater portion of the lumber manufactured by plaintiff was shipped to California, and'there disposed- of, and the measurement thereof, so far as the record shows, was what is termed in the testimony the “association tally,” and was made at the various points in California where the lumber was delivered. Plaintiff’s evidence tends to prove that the measurement or tally referred to discloses a manufacture of about 28,500,000 feet. The evidence also discloses that the expression “sawmill tally” means the amount of lumber cut, as shown by the tally made at the mill. The “association tally” is therefore not the tally which was agreed upon by the parties as a basis of settlement. For a court to adopt some other method of measurement than the one specifically provided by the agreement of the parties would be to make a new and different contract from the one entered into by the parties, and that is beyond our power: 9 Cyc. 587. Without the sawmill tally there is no complete record of the quantity of logs cut, except the “landing scale” kept by plaintiff, and therefore no means provided whereby the court could accomplish the accounting and settlement provided for in the agreement. The cutting, manufacturing and marketing of the logs were all .in the hands of the plaintiff, and if, by its own negligence, it has failed to comply with the terms of the contract provided for its own protection, it cannot complain if it suffers loss thereby.

There are a number of other questions discussed in the briefs, but, since they are all subordinate to the points herein considered, we deem it unnecessary to enlarge upon them.

The decree of the trial court is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice McBride concur.