Garvin v. Gates, 73 Wis. 513

Garvin v. Gates

73 Wis. 513 | Wis. | 1889

Oole, C. J.

The principal controversy in this case turns upon the question whether the plaintiff performed his contract by delivering- the logs which he cut for the defendant into Hay creek in good driving water, landing them so that they could be easily started through the dam in the spring. *517The defendant claims that he did not thus deliver them, and that in consequence of the logs being delivered at a wrong place he was put to great expense in getting them to water where they could be floated down the stream. The agreement is plain, and bound the plaintiff to “ deliver the logs into Hay creek in good driving water, and land them so they can be easily started through the dam in the spring.” Was this condition -kept and performed by the plaintiff?

The contract should be construed in the light of the surrounding circumstances and the situation of the parties in respect to the subject matter about which they were contracting. This rule is familiar in the interpretation of contracts, that the court should as far as possible put itself in the situation of the parties, and see how the terms of the instrument affect the property or subject matter. 1 Greenl. Ev. § 287. The evidence shows that the logs in question were delivered or landed on Hay creek at an old beaver dam. This beaver dam was a little distance above a flooding dam, constructed to set back the water. The evidence is quite in accord and conclusive that Hay creek, at the point where the logs were landed, in its ordinary and usual stage of water really had no good driving water for floating logs; but the water which set back from the flooding dam at times of high water was sufficient to enable logs to be run from that point. The court below submitted the question to the jury upon the evidence whether the plaintiff had performed his contract by landing the logs at a place that lumbermen would consider fairly good driving water, and where the logs could be got at with fair facilitj^ in the season of ordinary driving water. It seems to us that this was peculiarly a question of fact for the jury. But one of the main errors relied on for a reversal of the judgment is this action of the court in submitting the question whether the logs were landed in good driving water. It is said the evidence was *518all one way on that point, and that the court should have determined as a matter of law that the logs were not landed in good driving water within the meaning of the contract. We cannot agree with counsel in that view of the matter. The parties must be presumed to have contracted with reference to the nature of Hay creek in its natural condition. And when the plaintiff landed the logs in the creek as near the flooding dam as was necessary to enable them to be run down the stream when the water was set back by the dam in the spring as it usually was, he had performed his contract. There is considerable testimony that the logs might have been run down the channel of the creek through the beaver dam, had not the dam below been choked with logs. So that the difficulty in getting the logs down the stream was not because they were not landed in good driving water, but because the dam was filled with other logs, which prevented these from being driven. We do not say that this was the fact, but merely that there was evidence tending to prove such a state of things, which it was proper to submit to the jury with the other circumstances. So it was impossible to say, as a matter of law, that the real obstacle to running the logs was because they were not landed, as the contract required, in good driving water; for there certainly is evidence that they might have been driven in the spring from where they were landed, if the dam below had been free from other logs. So that error cannot be predicated upon the fact that the question was submitted whether the plaintiff performed his contract by placing the logs where they were put by him. If the logs were landed where men in the lumber business, engaged in driving logs, would consider there was good driving water in view of the character of the stream and its surroundings, this was all that was required by the contract.

Another error assigned is the ruling of the court in allowing the plaintiff to qnswer, under objection, the question *519put to him, in substance, whether he knew the location of' the beaver dam in the winter when he was putting in the logs. It is said it made no difference whether he knew or did not know of the existence of the beaver dam; that he was bound to deliver the logs in good driving water. The counsel on the other side say, in answer to this objection, that the question was not asked to excuse non-performance of the contract, but to explain a conversation that the witness Bailey had testified to, and to show that the plaintiff had not knowingly landed the logs at an improper place. It seems to us it was competent for the plaintiff to state his understanding of the conversation he had with Bailey, and which the latter had testified to.

The question asked the plaintiff on cross-examination, and ruled out, as to whether he had given the defendant a note for a yoke oí oxen purchased in November, 1876, was clearly irrelevant, and properly excluded.

Some exceptions were taken to the charge of the court. In the complaint it was alleged that there was an accounting between the parties in March, 1886, and that a balance of $369 was found due from the defendant to the plaintiff. On the trial there was an effort made to prove a settlement of all matters between the parties. In regard to this account stated, the court, in effect, charged that if all matters were settled and the defendant, knowing just how the logs were landed, had talked over that matter, and the parties agreed as to the amount due, then they were bound by the settlement; that no advantage could be taken, but the parties must fully understand and agree that any claim for a breach of the contract was included in the matters settled, otherwise such claim was still open and unadjusted. This is really all the charge amounts to, and we can perceive nothing in it unfavorable to the defendant. The defendant claimed that he had paid $300 for hauling the logs from above the beaver dam down the creek into good driving *520water. As to that claim the court charged that, if the defendant paid for this hauling more than it was reasonably worth, the plaintiff would not be liable to account to him for the full amount, but only for what the hauling was fairly worth. We do not perceive any valid objection to the rule of damages thus laid down. It seems to be founded in good sense, and accords with principles of justice and equity. Upon what principle could it be claimed that the defendant was entitled to recover of the plaintiff more for the hauling than it was fairly worth to do it? It is not to be presumed he would pay more than the service was reasonably worth, but if he should see fit to do so he ought to bear the loss. We think the charge is unobjectionable.

These remarks dispose of all the questions which we deem it necessary to notice.

By the Cou?'t.— The judgment of the circuit court is affirmed.