83 F. 116 | 7th Cir. | 1897
(after stating the facts). We have on. several occasions spoken to the rule that excludes parol evidence of verbal negotiations to contradict or vary the terms of a subsequent
We have not failed to consider the case of The Poconoket, 28 U. S. App. 600, 17 C. C. A. 309, and 70 Fed. 640, which was strongly urged to our attention. There the written agreement provided for tlje construction of a passenger steamer, payment therefor to be made at stated periods during the progress of the construction. A portion of such payment maturing before the completion of the vessel could be made in bonds of the company contracting for the building of the-
It is also well settled with respect to the interpretation of contracts that an engagement to perform an act involves an undertaking to secure the means necessary to the accomplishment of the object, and that whatever is necessary to the performance of the undertaking is part and parcel of the contract, and, although not specified in the contract, is to be implied, and is in judgment of law coxxtained in it. U. S. v. Babbitt, 1 Black, 61; Lawler v. Murphy, 58 Conn. 309, 20 Atl. 457; Currier v. Railroad, 34 N. H. 498; Savage v. Whitaker, 15 Me. 21; Rogers v. Kneeland, 13 Wend. 144; Johnston v. King, 83 Wis. 8, 53 N. W. 28; Manistee Iron Works Co. v. Shores Lumber Co., 92 Wis. 21, 65 N. W. 863.
The agreement here was to cut and deliver in the Wisconsin river certain logs; that these logs should be banked on the Twin river, which empties into the Wisconsin river, on or before the 20th day of March, 1893. The engagement of Monahan, therefore, was to deliver these logs in the Wisconsin river. The banking them xxpon
The court also charged the jury that, assuming Monahan to be so liable, the change in the banking place was not material to their
“Now, I have no objections to your putting them [the logs] in the Wisconsin river below [above?] where the Twin river empties in, as cheap as you can, but I do object to your doing anything that will interfere with the logs being delivered in the boom as early as if put in as the contract calls for.”
This is no consent to the banking of the logs on the Wisconsin, river in the sense that it waives or condones Monahan’s default. He simply recognizes the situation and the default, and consents to the employment of other means to be a'dopted by Monahan to put the logs in the Wisconsin river if such act does not interfere with the delivery of the logs within the tirhe required by the contract. In other words, he says that he has stipulated for the banking of the logs on or before the 20th day of March, 1893, provided the logging season permit, so that advantage may be taken of the early freshets, and a speedy delivery assured. He recognizes the fact that Monahan has, through default, been unable to comply with one term of the contract, and procure the banking place upon the river designated, and states that he has no objection, under the circumstances, that the banking be done upon the Wisconsin river if it shall not interfere-with the same early delivery which was contemplated by the banking of the logs upon the Twin river. We perceive here no waiver of any right to- hold Monahan responsible for default; and in so far as that default operated to prevent him from making delivery within the-time specified, and in so far as it operated to prevent delivery of the logs during that logging season, with the resultant injury, if any, to the logs- left in the woods, Monahan must be held responsible.
We are also of opinion that the court erroneously stated the law in its charge that Monahan was required only to use such reasonable and proper diligence as a man of ordinary care and prudence would use in his own affairs; that, in starting upon the work, he would be required and expected only to make such provision as to- the number-of teams and men and diligence in pushing the work as would ordinarily be required in ordinary seasons. The contract was absolute-to deliver and to bank the logs by the time stated, with the single-limitation, “provided the logging season permit.” The measure of the duty of Monahan under the contract was not that of ordinary care. His duty was absolute to do the things he -had- undertaken to do, and by the time stated, unless, and only unless, he was prevented therefrom by the nature of the logging season. Lumber Co. v. Chapman, 42 U. S. App. 21, 20 C. C. A. 503, and 74 Fed. 444. He was required to make delivery as he had agreed, and failure to deliver seasonably
With respect to the instructions requested and denied, that Monahan, failing to haul all the logs, during the logging season of 1892-93, could not recover for hauling the remaining logs during the ensuing season, we remark that the record states that these logs were hauled without the consent of Godkin, but were by him run down the Wisconsin river from the hanking ground, and that Monahan paid the cost of running them from the banking ground to the mouth of the Twin river, the designated place of delivery under the contract. We understand this statement to mean that, while Godkin did not previously consent to the hauling of the logs, he took possession of them at the hanking ground, and ran them down the river, and received and accepted from Monahan the cost of running them to the mouth of the Twin river. We do not gather from this statement that Godkin forbade the hauling of the logs, hut simply that he liad not actively consented thereto prior to hauling. Undoubtedly, the contract remaining executory, Godkin could stop performance by explicit direction to that effect, paying to Monahan the profits of hauling. Whether the contract could he held to be executory after the close of the logging season we need not now consider; but if Godkin, with knowledge that Monahan had hauled the logs, accepted them from him at the hanking ground, and ran them down the river, and took from Monahan the cost of running them to the mouth of the Twin river (the designated place of delivery under the contract), it was, we think, proper to submit to the jury the question whether Godkin did not thereby recognize tbe contract as in force with respect to the obligation of Monahan to haul the logs, and whether he did not accept delivery of them. If such acceptance were found, it would not operate as a waiver of damages sustained by delay in delivery, but would avail to require compensation for the hauling. The instruction, being inconsistent with this view, was properly refused.
We cannot close this opinion without a word of commendation to counsel upon both sides for the admirable manner in which the bill of exceptions presented to our consideration has been prepared. The record of a trial continuing during four weeks is condensed, and the exceptions fully presented, in 16 printed pages of this record. The paper is a model that the bar should copy after. It has become much too common in the preparation of a hill of exceptions for the lawyer to abandon his function to the stenographer, and to reproduce as a bill of exceptions the stenographic report of the trial. This course may save counsel labor, but it is neither lawyer-like nor just to court or to client. It involves on the part of the former the wasteful expenditure of time in searching a mass of irrelevant testimony embodied in tbe bill, to ascertain the exact hearing of the errors assigned, and it imposes upon the latter the unnecessary expenditure of money in printing a mass of irrelevant testimony.
The judgment will be reversed, and the cause remanded, with directions to the court below to award a new trial.