69 Minn. 532 | Minn. | 1897
This action was brought to recover an alleged balance due plaintiffs for logs sold and delivered .to the defendants. Both under the pleadings and upon the trial there were but two issues: First, whether the original contract (Exhibit A of the complaint) was modified in the summer of 1894 by changing the place of the future 'delivery of logs from the limits of the Mississippi & Rum River Boom
Tbe evidence was very voluminous, and it would be impossible to discuss it fully within any reasonable space, and it would subserve no good purpose to do so. Suffice it to say that, after a perusal of tbe entire record, we are of tbe opinion that upon both issues it justified tbe verdict. Tbe evidence as to tbe modification of tbe contract as to the place of delivery consisted of tbe conflicting testimony of tbe plaintiff Graves and tbe defendant Backus, and made a case for tbe jury.
Tbe evidence produced by tbe plaintiffs to prove tbe amount of logs delivered under tbe contract consisted of tbe “bank scales” made by tbe deputy surveyor general, showing tbe amount of logs cut and banked, and of testimony tending to show that tbe plaintiffs made a “clean drive” of all these logs from tbe place where they were banked down to the Pokegama dam, while tbe evidence on tbe part of tbe defendants tended to show that tbe plaintiffs did not make a clean drive, but that a very considerable number of tbe logs were left along tbe streams above Pokegama. In fact, most of the evidence of both parties was directed to that point.
Tbe contract does not in so many words state whether, on the final settlement between tbe parties, tbe plaintiffs were to be paid according to boom scale or according to bank scale. Tbe provisions as to tbe first and second payments clearly imply that they were to be made according to tbe bank scale, and tbe evidence shows that tbe parties used tbe bank scale as tbe basis for ascertaining tbe amount
It is urged in support of the objection to the sufficiency of the evidence, as well as the objection to the competency of the deputy surveyor general’s scale bills, that the logs scaled were not identified as the same logs for which the plaintiffs sought to recover, and that there was no evidence that all the logs thus scaled on the bank were ever put afloat in the drive. It may be true that no witness testified directly, in so many words, to either of these facts, but we think that counsel is clearly‘in error in claiming that there was no evidence on those points. It clearly appears' all through the evidence that the logs driven were those which had been previously scaled on the bank, and a clean drive of logs previously banked is wholly inconsistent with the idea that part of them were left where banked.
2. Exhibit A in the evidence was an agreement between the Mississippi & Rum River Boom Company and several Minneapolis lumbermen, including defendants, by which the latter agreed to accept their logs, put in above Pokegama dam, when they were sluiced over said dam, instead of having them driven down to Brainerd. The plaintiff Graves, having seen this agreement in the office of the boom company, went to defendant Backus, and, as he testified, told him that he had seen this agreement, and asked him if that con
3. If the bank scale was to determine the rights of the parties, then the testimonoy of the witness Terry that the logs “were driven in the usual manner in that vicinity” was both material and competent, otherwise, although immaterial, its admission was error without prejudice.
i. What has been already said as to the sufficiency of the evidence fully answers the objection to the admission in the evidence of the scale bills. The objection was not to the scale bills themselves, but that the logs scaled were not identified as the logs driven, or as the logs for which plaintiffs sought to recover. Neither was there any error in the admission of the transfer of the log marks by plaintiffs to the defendants.
5. The counterclaim of defendants was for money overpaid to the plaintiffs in reliance on their false representations as to the amount of logs delivered; and the charge of the court, that to entitle them to a recovery on this counterclaim the defendants must show that such representations were made willfully and with intent to defraud, is assigned as error. This instruction was probably incorrect, but it is unnecessary to consider it, for the reason that counsel on the argument conceded that the defendants had failed to make out a case for any recovery on their counterclaim. Moreover, the fact that the jury found a verdict for over $2,600 in favor of the plaintiffs shows that they never reached the question of the counterclaim.
The refusal of the court to grant a stay of proceedings is assigned as error. The most that can be claimed for the defendants is that the matter of granting a stay was addressed to the sound discretion of the court. Upon the showing made by the affidavits and counter affidavits, there was no abuse of discretion in denying the stay, — at least, upon the conditions imposed.
It is also urged that it was error to order judgment on the verdict pending the appeal from the order denying the stay. Counsel’s idea seems to be that this appeal kept in force the temporary stay “until the further order of the court,” contained in the order to show cause. To this there are two conclusive answers: First, the temporary stay pending the hearing expired, by its own limitation, upon the discharge of the order to show cause; and, second, that the order denying the stay of proceedings was not an appealable order, and hence the attempted appeal was a mere nullity.
This covers all the assignments of error worthy of special notice, and the judgment is affirmed.