20 Minn. 345 | Minn. | 1874
By the Court.
The defendants, upon the trial introduced evidence, tending to show that all the logs they had that season, except those they got from Stanchfield and Leighton, amounted to three hundred and thirty thousand feet, and that when their mill shut down, at the close of the season,there were 450 logs, and no more, in the pond and creek, amounting to not more than 75,000 feet. They also proved
The object of the evidence was, to show that Stanchfield & Leighton could not have cut the amount of logs, which they claimed to have cut. It does not appear, from the bill of exceptions, that the defendants, between the times stated in the offer, sawed into lumber, at this mill, all the logs cut by Stanchfield & Leighton, and all those driven by the witness, Gorton. The evidence offered, which at best was of an inferior character, was, therefore, properly rejected.
The contract for cutting, hauling and marking logs, set up in the answer of the defendants, and out of which the defense arises, contains the following stipulations: “ All of which logs shall be measured and scaled by the surveyor general of logs for the Stillwater district, or his deputy, whose decision shall be final. * * * * And it is further agreed that the said parties of the first part, (Stanchfield & Leighton,) shall board the scaler during the time of scaling said logs, and said parties of the second part, (Grant, McCaine & Co.) shall pay the scale bill.”
Chapter 32 of the General Statutes divides the state into seven districts for the survey and measurement of logs, &c., and provides for the appointment of a surveyor general of
It is claimed by the appellants that the stipulation in the agreement, that the decision of the surveyor general of logs or his deputy, as to the measurement of logs “ shall be final,” is void for two reasons: First, The effect, as evidence, of the certificate, return and record of the surveyor general, or his deputy, is fixed and determined by the statute, and cannot be extended, limited, controlled, changed, or in any manner affected by agreement of the parties. Second, The surveyor general and his deputy are public officers, having certain fixed public and official duties to perform; and an}1- agreement of parties, the object of which is to stifle, shut out, or in any way exclude evidence of, or inquiry into the manner in which they have performed their duties, is, for obvious reasons contrary to public policy and void.
There is no express provision in this statute, or any other which has come to our notice, prohibiting the parties from making a stipulation of this kind. In the absence of express prohibition a party may waive a constitutional, as well as a statutory provision made for his benefit, where no principle of
It appears from the testimony, that a settlement was made on the 18th of March, 1871, for logs cut under the contract, at which the plaintiff represented Stanchfield and Leighton, and the defendants, Grant, McOaiue & Co., were represented by Daniel McOaine, one of the firm. The settlement was made upon the certificate of John Lowell, deputy surveyor of logs, dated Grindstone River, March 17, 1871, which was in evi-
Upon the trial the defendants requested the court to instruct the jury as follows : “ First: If the jury believe, from the evidence before them, that the amount of logs reported by the scaler, John Lowell, to have been cut by Stanchfield & Leigh-ton for the defendants, under the agreement between them, was one million feet, or over, more than they in fact cut, their verdict must be for the defendants. Second r If the jury find from the evidence before them, that the defendants have, in fact, paid Stanchfield & Leighton, in cash, for all the lumber or logs actually cut by them, under the agreement between them, dated November 17, 1870, then their verdict must be for the defendants- Third: If the jury believe, from the evidence before them, that the quantity or amount of lumber or logs, returned by said Lowell as having been cut by Stanch-field & Leighton for defendants, upon which this settlement between them was made, was one million feet, or over, more than the amount actually cut by them, that is conclusive evidence of fraud, and their verdict must be for the defendants. Fourth: The stipulation in the contract, that the decision of the deputy surveyor in regard to the scale should be final, has reference solely to a fair and honest scale, and in case the jury find that this scale of Lowell is grossly erroneous, it is not
The answer of the defendants admits the making of the notes, upon which the action is brought, and the transfer of Stanchfield’s interest therein to the plaintiff, but avers that such transfer was subsequent to the maturity of the note. It then sets up the agreement between Stanchfield & Leighton and the defendants, and alleges that said Stanchfield & Leigh-ton cut, hauled, marked and banked, under and pursuant to the terms of the agreement, eleven thousand three hundred and thirteen logs, and no more; and that the same measured, board measure, two million three hundred and sixty-six thousand one hundred and fifty-four feet, and no more, amounting, at the price named in said agreement, to the sum of f8,281.53, and no more.
The answer further avers, that the logs were scaled and measured, under the direction of the plaintiff, Leighton, by a deputy of the surveyor of logs for the Stillwater district; that said deputy did not make a correct statement or account of the scaleage or measurement of said logs, but that the plaintiff, with the intent and design to cheat and defraud the defendants, and procure from them the notes in the answer described, one of which is the note in suit, did fraudulently induce and procure the said deputy to make and return to the said surveyor general, and to said defendants, a false and fraudulent statement and account of the scaleage and measurement of said logs, by which false and fraudulent statement and account the said logs were represented to scale and measure 3,613,538 feet, board measure, while in truth the real scaleage and measurement thereof was only 2,366,154 feet, board measure, as above stated.
It appears from the answer that the four notes were given by the defendants for the general balance which, upon the accounting, as it transpired, appeared to be due to Stanchfield & Leighton. It. also appears therefrom that there was in fact due to Stanchfield & Leighton at the time of the settlement a
The defense set up in the answer is fraud. The facts stated in the answer constitute a case of gross positive fraud upon the part of Lowell, the deputy surveyor general, who surveyed the logs in question, and the plaintiff, Leighton, perpetrated with the express design of procuring these notes. The answer leaves no room for inferring a mere mistake or error, gross or slight, upon the part of either of these persons.
It is an established doctrine of the courts of equity, that where a bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the plaintiff is not, in general, entitled to a decree, by establishing some one or more of the facts, quite independent of fraud, but which might of themselves create a case under a distinct head of equity from that which would be applicable to the case of fraud, originally stated. (1 Dan. Ch. Pl. and Pr. (Perkins’ Ed.) 335-6 ; Wilde vs. Gibson, 1 H. L. Cas. 605 ; Eyre vs. Potter, 15 How. 42, 56 ; Fisher vs. Boody, 1 Curtis C. C. Rep. 211; Tillinghast vs. Champlin, 4 R. I. 173 ; Williams vs. Sturdevant, 27 Ala. 599.) This is not in conflict with the rule, that in a bill alleging fraud, the facts may be of such a character, and be so stated, that relief may be granted on the ground of a gross mistake. (See
The first and third instructions, requested by the defendants, required from the jury a verdict in their favor, if the jury should find that the amount of logs returned by Lowell, the deputy surveyor general, upon whose return the settlement was made, was, in fact, one million feet, or over, more than the amount actually cut by Stanchfield & Leighton; and the fourth instruction avoids the stipulation in the contract, that the decision of the deputy surveyor in regard to the scale of the logs should be final between the parties, and authorizes the jury to disregard his measurement of the logs, if they should find it to be grossly erroneous for any reason.
Under these instructions it was altogether immaterial whether the over-measurement was found by the jury to be fraudulent, or a mere mistake, without fault or negligence, in fact, upon the part of either Lowell or the plaintiff. This being the effect of the instructions, they were entirely too broad, and under the rule above laid down, were erroneous, unless the over-measurement alluded to was conclusive evidence of fraud. There is a marked distinction between negligence and fraud. “ In the first, there is no positive intention to do a wrongful act; but in the latter, a wrongful act is ever designed and intended. Negligence may be sufficient evidence of fraud, but is not conclusive evidence thereof.” Gardner vs. Heartt, 3 Den. 236; Wilson vs. York and Maryland L. R. R. Co., 11 Gill & J. 58, 79; Goodman vs. Harvey, 4 Ad. & El. 870 ; Uther vs. Rich, 10 Id. 784; Shearman and Redfield on Neg., § 3.
The instructions were therefore properly refused. The order denying a new trial is affirmed.