103 Minn. 471 | Minn. | 1908
March 24, 1899, appellant entered into a contract in writing with Robert H. McCoy, whereby it agreed to cut and remove from certain
“It is understood that the said party of the second part purchases said logs for the purpose -of manufacturing the same at the mill to be erected by him at1 or near East Grand Forks, upon said Red Lake river, below Crookston; and it is mutually agreed that if said party of the second part shall be unable, after exercising all proper diligence, to get substantial^ the entire cut of said logs in any one season from the point where the same may be delivered to him by the party of the first part pursuant hereto to his said mill, the last four payments to-be made for such logs which he may be so unable to get in any one season shall be deferred until he shall be able, exercising all proper diligence, to get such logs to his mill, and thereafter the payments so deferred shall be made in three equal payments as follows: One at the time the logs are substantially delivered at his mill, one in sixty days, and one in ninety days thereafter.”
McCoy assigned the contract to respondent, and this action was brought to recover damages alleged to have accrued by reason of the fact that during the year 1905 appellant cut and sold a large quantity of timber to other parties and entirely failed to deliver the same to-respondent in accordance with the terms of the contract. Respondent recovered a verdict.
1. One of the principal questions presented on the appeal is that the contract was not within the statute of frauds, and consequently parol evidence was admissible to prove that its terms had been modified. It was alleged in the answer that the original contract was modified, so as to provide that appellant was relieved from the duty of delivering to respondent that portion of the timber located east of a certain ridge, but that the terms of the contract should .remain in force as to all of the timber located west of the ridge, with certain modifications in the payments. Appellant also claimed that the contract was modified so that respondent agreed to receive and pay for twelve million, instead of nine million, feet to be cut and delivered during the winter of 1903-1904. All parol evidence offered on the part of appellant tending to change the terms of the contract was rejected by the trial court upon the ground that it tended to change the terms of the contract which was within the statute of frauds.
It follows that the contract was within the statute of frauds, in that its execution required more than one year from its date, and consequently its terms could not be varied by parol evidence. The follow-.
2. Appellant admitted that it had sold to another party all of the logs cut on the lands lying east of the ridge, but attempted to justify its conduct in so doing upon the ground that prior to that time respondent had violated the terms of the contract by failing to make payment of the logs already cut, in accordance with its terms. According to the original contract, appellant was to deliver all of the logs to respondent at Crookston; but subsequently, on July 14, 1904, it was modified in writing, as follows:
“Witnesseth: The party of the second part [respondent company] hereby agrees to drive to Crookston, Minn., all of McClure Logging Company’s logs, so called, * * * which were driven out of Sandy river this season and delivered at the outlet of Red Lake in Red Lake river. For the driving of said logs the party of the first part [appellant company] agrees to pay to the party of the second part forty-five cents per thousand feet, board measure, when the said logs are so driven or accepted as driven to Crookston by the said second party. It is further agreed that when the said logs are so accepted as driven by the party of the second part that they, the party of the second part, will accept and pay for all the said logs, as per a certain contract for the purchase and sale of said logs and now in effect between the parties to this agreement. * * * ”
The original contract provided that one dollar per thousand feet should be paid for all logs banked prior to the first day of January in any year, commencing with the first day of January, 1900. There is a dispute between the parties as to when the several payments were to be made. The defaults which appellant charges are stated in the summary of its briefs as follows: During the winter of 1903-1904 appellant cut and banked a total of 14,279,660 feet. Respondent paid the banking payments on 12,000,000 feet. The balance should have been paid when the camp broke up in the spring of 1904. In any event the banking payments on the difference, 2,279,660 feet, should have been paid January 1, 1905, so that at the time respondent made the first sale of logs to the Smith Timber Company on March 30,
To meet this charge of delinquency in the payments, respondent contends that there is no evidence in the case to show that the logs covered by the contract of July 14, 1904, were accepted as driven, and in any event that the later contract was not intended to modify the first as to the time of payment. The former contract provided that appellant should deliver and that respondent should accept and pay for nine million feet each year, and that the Sandy river logs which were driven under the 1904 contract did not constitute a part of the nine million feet. In any event, says respondent, conceding that the time of payment was somewhat uncertain, and that some payments may have been delayed, yet appellant being aware that it was itself in''default, and not having informed respondent that it had assumed to repudiate the contract and sell the logs to other parties on account of any such delay, and the payments having been made in good faith in the course of business, that respondent cannot be charged with having repudiated its. contract. During the correspondence which took place, and in making out accounts, appellant1 sent a statement, August 29, 1905, crediting respondent with the forty five cents per thousand for driving the logs referred to in the July, 1904, contract. . On September 5 the respondent remitted the amount which it claimed to be due, but ignored the reference to the Sandy river logs. This amount was accepted by appellant without protest, and thereafter subsequent payments were made on the fifteenth day of October, November, and December, which were received without protest. Appellant wrote to respondent on another matter October 19, 1904, and added by way of postscript: “And, by the way, there is quite a lot of money coming to McClure Logging Company since October 5th. They are paying interest on large amounts. Please see that they get what was due the 5th inst.” At the time this letter ‘ was received by respondent, the payment referred to in the letter had already been remitted. It is evident that there was not a clear understanding as to when the:
Conceding, therefore, that there was a dispute between the parties as to the time those logs should be paid for, and conceding, also, that under the original contract respondent was late with the payments, -at least to the extent of several thousand dollars, at the times appellant sold the logs to other parties, was the delay in making those payments of such a character as to evince an intention on the part of respondent to repudiate the contract, and thus justify appellant in repudiating its contract?
Upon this branch of the case appellant requested the court to instruct the jury that if they should find from the evidence that respondent, under the contract of July, 1904, either did drive, or in the exercise of reasonable diligence could have driven, the Sandy river logs to Crookston, then a verdict should be returned for appellant. Several other requests were made covering the proposition that respondent could not recover in case the jury should find it was in default in making the payments as stated. The requests were refused. We are of the opinion that the trial court correctly disposed of this matter. There is no evidence that respondent intended to repudiate its contract. Whatever delay may have taken place in the payments ■grew naturally out of the condition under which the parties were •doing business. Respondent was evidently proceeding in good faith ■and within its legal rights. There is nothing in the record to indicate that appellant sold the logs to other parties for the reason that respondent was in default in the payments. Indeed, it is apparent that appellant sold the logs to other parties for other reasons, having no reference to respondent’s conduct in the business.
3. On the question of damages the court charged the jury that respondent was entitled to recover the difference between the $8.50 per thousand feet on 14,779,010 feet, and such price per thousand feet •on the same amount as according to the evidence any solvent purchaser could have gotten in the territory tributary to Crookston, and •contracted for the future delivery of that amount of logs of substantially the same quality and character, and interest upon the amount
As we have already stated, the contract contemplated that all of the logs cut during any logging season should be delivered to respondent at Crookston during the following driving season; the object being to supply their mill at Grand Forks with a continual supply of logs until the whole- amount covered by the contract should be exhausted. The contract was entire, although arranged so that the payments should be made in instalments. Now, on the thirtieth of March, 1905, appellant had. cut over ten million feet, ostensibly for the purpose of driving and delivering the same to respondent during the enáuing season; but, instead of doing so, it sold 9,178,280 feet to other parties, and according to the evidence received an amount largely in excess of the amount they would have received, had they delivered the logs under the contract. Under all the circumstances, when this fact was discovered by respondent, it was justified in assuming that appellant had repudiated the contract and did not intend to deliver any more timber thereunder. In view of all the circumstances of the case, the fact that about four million feet still remained standing March 30 furnishes appellant no ground for the assertion that it had not violated the contract as an entirety. The breach of the contract was deliberate, and the right of action upon the breach became complete as of that date. That the damages were properly assessed by the trial court will appear from the rule adopted in the following cases: Ennis v. Buckeye Publishing Co., 44 Minn. 105, 46 N. W. 314; Bowe v. Minnesota Milk Co., 44 Minn. 460, 47 N. W. 151; Bolles v. Sachs, 37 Minn. 315, 33 N. W. 862; Horst v. Roehm (C. C.) 84 Fed. 565; Roehm v. Horst, 91 Fed. 345; and Id., 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953.
Affirmed.
