106 Mich. 230 | Mich. | 1895
On November 30,1892, tlie parties made a written contract, by which the plaintiff agreed to cut logs for the defendants. He began work December 8th, and stopped on February 28th, after cutting about one-third of the timber agreed upon. In the fall of 1893 he expressed an intention of resuming operations, but defendants declined to allow it, and cut the logs themselves. Plaintiff then brought this action, claiming damages for a breach of the contract, and defendants bring error upon a judgment for plaintiff of $500.
The first and most important question arises upon the refusal of the trial court io direct a verdict for the defendants. This involves a construction of the contract, which counsel for the defendants say was for the court, whereas the court left it to the jury. The contract was as follows:
“Said Greenwood agrees to cut, haul, and bank * * * all pine timber now being on [here follows a description of the lands], for the price of five dollars' and fifty cents per M. ft., board measure, by Scribner rule. Payments are to be made by said Davis & Mason on the last day of each month, at the rate of two dollars per M. ft. for all logs then skidded, and at the rate of one dollar and fifty cents more per M. ft. for all logs then banked on landings, — that is to say, three dollars and fifty cents per M. for all logs then so banked, — and when the work is completed, and camps broken up, Davis & Mason agree to pay in full at the above price per M. ft. * * * Said Greenwood to provide Davis & Mason with full release for all labor employed by him, to avoid labor liens.”
The contract fixed no time within which the labor was to be performed, and, under elementary principles, the circuit judge was correct in holding that the plaintiff was
The record shows beyond controversy that the defendants were the owners of a mill, and -relied upon the logs to supply it with work during the summer; that, in consequence of the failure to obtain them, the mill was idle during a portion of the season. It seems undisputed that the plaintiff finished hauling the logs that he had out and skidded (except a very few) before February 28th, and that he then stopped work and broke up his camp, intending to do no more before the next fall (if at all); and that, as soon as the defendants heard of it, they offered him fifty cents per thousand additional to continue, but that he said that he could not pay expenses, owing to the depth of the snow, and refused to comply with the request. He drew checks to pay his men, which were paid by the defendants. He did nothing more until October 1st, when he called for a statement of his account, and intimated an intention or willingness to- begin work again; but the defendants told him that they did not want any more to do with him, as he had not kept his agreement. On October 30th he wrote a letter offering to go to work. Defendant Mason testified that their men were in the woods at work, before the conversation of October 1st, and there is no evidence to the contrary. The record shows nothing to indicate that plaintiff communicated an intention to finish the f ollowing winter, either at .the time he quit work, or at any other time before October 1st; and, on that occasion, there is nothing to show that he protested when he was told that they would not permit him to finish the job, or that he had at that time taken, or did afterwards take, .any measures to begin work.
The brief filed by counsel for the defendants mises the question of estoppel. It does not show that it was raised upon the trial; but, if it did, we cannot say that the plaintiff had reason to suppose that the defendants would commence work before October 1st without an attempt to ascertain plaintiff’s intentions. We think the intentions of the plaintiff were material, as they bear upon the question of abandonment, though they might
Defendants gave notice of recoupment. This was based upon the claim that the plaintiff abandoned the contract. On the trial, they aslsed no verdict against the plaintiff, but only that their damages be allowed to an amount sufficient to offset any damages that the plaintiff might be entitled to. After instructing the jury as to the right to recoup, the court added: “But all this, perhaps, will not be necessary, as the defendants seem to have ivaived their claim for damages on their part.” This remark followed a full discussion of the defendant’s right to recoup, of which they cannot reasonably complain, and was apparently intended to apply to the earnings of the mill as a measure of damages. There could be no recoupment unless the jury found that the plaintiff broke the contract; and, as the court explicitly instructed the jury that he could not recover any sum if he did so, there was no occasion to discuss the question of recoupment after defendants had signified their intention to ask' no afirma,tive relief.
It is further contended that the damages were speculative, especially in the light of the statement that plaintiff lost money the first season by reason of the deep snow. There was testimony tending to show that the work could "have been done for $3.50 to $4 per thousand feet, and the difference between that sum and the contract price was claimed to be the measure of damages. This is the usual rule, Mueller v. Mineral Spring Co., 88 Mich. 390. In other words, the plaintiff would be entitled to the contract price, less the cost of doing the work, which cost was susceptible of proof by the evidence of experts acquainted with the business and the cost of such work. This is admitted to be the general rule; but it is said that the court should have found the profits conjectural, uncertain, and contingent, and therefore not a proper basis of recovery. This claim is based upon the eAddence that the cost of such work would depend upon
We find no error in the record, and the judgment must be affirmed.