33 Mich. 223 | Mich. | 1876
James sued Muir for a quantity of square timber delivered to the latter in June, 1873. The declaration contains one count on special contract, one for timber sold and delivered, and agreed to be paid for at a reasonable price, and the common counts.
The special count averred a sale of four hundred and twenty-eight pieces of timber, August 6, 1872, then in Arbola, Tuscola county, and an agreement to deliver the same to defendant in Bay City in the spring of 1873 as early as the
The verdict was at the rate of fifteen cents a cubic foot, for so much as had not been paid for at that rate by advances.
The plaintiff, to make out his case, besides showing a delivery of the timber, introduced the following paper, claiming it to be a contract of sale, and to contain the entire bargain between the parties:
“Port Huron, August 6, 1872.
“Beceived from B. Muir the sum of $629 00, C. cur., (six hundred and twenty-nine dollars, C. cur.) being pay in full of all demands for making and delivering square oak timber at Bay City, Michigan, for the year 1872. Also, B. Muir has advanced to J. James $2,077 42 C. c., (two thousand no hundred and seventy-seven dollars forty-two cents, C. c.) on 428 pieces of timber now lying in town of Arbela, Michigan, measured and marked M., which -said timber J. James agrees to deliver at Bay City, Michigan, in spring of 1873, as early as the ice and weather will permit, free of
“'[Signed] J. James.”
When this contract was produced, it appeared to have been altered, and the alteration was explained and admitted to have been made at the time of signing; the draft having expressed a rate of payment in the words “at the rate as in 1872,” and nothing having been expressed as to interest on advances.
The plaintiff swore that on the delivery of the timber actually brought down in 1873, defendant was not willing to pay for it except at the last year’s prices, while plaintiff was unwilling to settle on such terms on account of the arrangement in the writing. An agreement was made to arbitrate, which was not carried into effect. Plaintiff" also swore that the balance of the timber was scattered along the river, and could not then be delivered, and had not been.
Upon cross-examination, and in other ways, a considerable amount of testimony was introduced, to which plaintiff objected, and which will be referred to presently.
Plaintiff claims that the agreement of August 6th, 1872, on which he seeks to recover, was in itself a complete and binding bargain, containing every essential of a contract of sale, except the price, which it is claimed appears by implication.
As this is a suit in which defendant and not plaintiff is the “party to be charged,” and as the payment of the price is the only thing for which he is chargeable, it may be a (¡uestion of some importance whether, if this paper is a contract of sale, the statute of frauds is complied with so as to bind him. Where a contract is executory and not executed,
In the present case it is sufficient to say that according to Acebal v. Levy there is at least no implication of a promise to pay at what may happen to bo the market rate, which may not be always, as there held, a reasonable rate 3 and tire contract does not support the special count.
As the contract, whatever it may be, becomes important in another point of view, it is still necessary to determine whether it is such an instrument, as with the addition of such help as might come from the implication claimed, is' complete enough otherwise to exclude parol evidence of the real ature of the agreement.
There is nothing to indicate for what purpose defendant was to receive or hold this timber, whether as purchaser, mortgagee or factor. It is quite as consistent with a loan upon the security of the timber as anything else. It does show unmistakably that the advances must have been made on some previous arrangement, and not under this paper, because they were to bear interest from April 1st, and the writing is dated August 6th. The only definite conclusion to be drawn from the paper, assuming it to be fully binding as a contract of some kind, is, that it is not a complete transaction in itself, but only a part of some course of dealings, and to be read and applied by their aid. It is merely an agreement to deliver timber to defendant, and at the-time of delivery to account for the advances and interest. It is not on its face an agreement which binds defendant to-pay any money, or to purchase timber, nor is it complete in itself as an entirely independent contract for any purpose.
Without extrinsic evidence there was nothing to bind defendant under the writing. He distinctly refused, in receiving the timber, to pay any price except one which he insisted was within a former agreement. Plaintiff does not -show, unless very indirectly and inferentially, what price he demanded. There was no waiver or assent which could prevent defendant from setting up his actual «rights, whatever they may have been.
There was no error, therefore, in holding it competent to show by any relevant testimony all the previous relations
The agreement of September 27, 1871, bound James to make, draw, raft and deliver 'to Muir all the square oak which “he makes in 1872, or has now made, in the spring of 1872, as early as navigation will permit, free of encumbrances;” and also bound him to use all moneys received, in buying standing timber, or skidding, making and drawing timber or rafting material, or rafting and running the timber to Bay City. It was to average at least sixty-eight feet, and if possible seventy; and it was to be paid for at one hundred and fifty dollars per thousand feet, in the following way: twenty dollars for standing oak, forty dollars for making, ten dollars for skidding, twenty dollars for hauling, and forty dollars for rafting and rafting material and running, and five dollars for towing, and fifteen dollars per thousand when delivered, with an additional five dollars if the timber sold at Quebec for three hundred and seventy-five dollars per thousand.
The present timber was got out, identified and measured, and marked by plaintiff and defendant, before or during the time mentioned in that contract, and was undoubtedly covered by it. It is also beyond question that the failure to deliver it in the spring of 1872 was a breach of that contract, unless excused, and one which might be excused by a change of time.
July 20th, 1872, an account was made up, which brought together in a single statement the timber actually delivered at that date at sixteen cents a foot, and the other expenses of the business, and included a reference to the four hundred and twenty-eight pieces in question, as “measured in the bush,” showing an advance of two thousand seventy-seven dollars and forty-two cents, which is the advance referred to in the instrument of August Gth, 1872. Appended to this account is the following document: “July 20th. This is to certify that J. Janies has settled up in full
This originally did not contain the last clause, which provides for interest, and fixed the price at rates of 1872. The change was made at the time the agreement of August Gth was made, and so as to make the two correspond.
It will bo observed -that the only essential difference between these two papers as originally drawn is, that the July paper required James to account for the advances as soon as work was commenced on the timber, while the August paper postponed it until delivery of the timber. The change as to price and interest was made at the same time.
Under those circumstances we think the writings all belong together, and that there could be no presumption of a change beyond the. writings, until established by- distinct evidence. There is no ambiguity whatever in either of these papers, when so construed, while, without this connection, neither of them is complete, and neither would make out a contract of sale, or any other contract on which plaintiff could have a right of action. The evidence that all these papers existed, and that the timber was got out and measured so as to come within the agreement of 1871, ’is not disputed. The result is inevitable that the instrument of August, 1872, is either a supplement to that of 1871, or else is invalid entirely, for want of a compliance with the statute of frauds, which, whatever may be the rule as to price, requires that the memorandum shall at least show all the other terms of the contract, and especially must show that it is a contract of sale. The parol negotiations were merged in the writing.
The question whether any arrangement was made about the price after August 6th, 1872, was left by the court where the parties had been satisfied to leave it. The jury must have found there was no new bargain made after August 6th.
Wo do not think it material what was the precise extent of defendant’s specific interest in the timber under the contract of 1871, after it was got out and identified and marked, because it would not change or affect any question involved here. If ho had any rights at all, and the new contract did not abrogate them, the case was fairly left to the jury.
The judgment must bo affirmed, with costs.