88 Minn. 517 | Minn. | 1903
Action to recover an unpaid balance of the purchase price of a quantity of pine saw logs sold by plaintiffs to defendant at $13 per
The facts are substantially as follows: The firm of Walker & Akeley owned a quantity of pine saw logs in the northern part of the state, which were marked by a log mark "crab W.” The logs were sold by that firm to plaintiffs, and driven down the Mississippi river to Minneapolis. In August, 1900, defendant applied to Walker Akeley to purchase a few million feet of logs that were sure to come down the river in September following. Negotiations between them resulted in the purchase by defendant from these plaintiffs, through Walker & Akeley, of a million feet of such logs, with an option on two million feet; and the logs so owned by Walker & Akeley were the subject of this contract. Defendant agreed to pay therefor the sum of $13 per thousand feet, the same to be scaled at the St. Paul Boom by the surveyor general, or his deputy. The arrangement between the parties in reference to determining the quantity of logs delivered was oral, and the result of conversations between plaintiffs and Avitness Betcher, who represented defendant, a corporation. Plaintiffs wished the logs scaled at Minneapolis; Betcher insisted that they be scaled at the St. Paul boom; and it was finally agreed that they should be scaled in accordance with the latter’s wishes. It is the claim of plaintiffs that according to the scale made at the St. Paul boom 1,060,420 feet of logs were actually delivered to defendant. Defendant paid on account thereof the sum of $9,781.39, and this action was brought to recover a balance of $4,135.65.
The answer interposed by defendant admitted the contract for the sale and delivery of the logs, but alleged in defense that not more than 910,940 feet were in fact delivered.- At the trial below plaintiffs offered in evidence a scale bill made by the surveyor general, and by that it appeared that 1,060,420 feet of logs were delivered. Defendant offered to prove by a Avitness who made the scale — a deputy surveyor — that the surveyors were unable to scale the logs correctly in the St. Paul boom, and that a considerable portion thereof was estimated, and not measured at all; that all the logs scaled by the sun-eyor general were delivered to defend
The principal question before us is whether the scale made by the surveyor general, and relied upon by plaintiffs, was final and conclusive, except as to fraud or gross mistake. The contention of plaintiffs is that the scale was conclusive, and that the evidence offered by defendant for the purpose of showing a mistake, not being-accompanied by an offer to show fraud or bad faith on the part of the surveyors, was inadmissible.
After a careful consideration of the matter and of the authorities bearing- upon the question, we are unable to concur in this view. As a general rule, by a submission of a dispute or controversy to arbitration the parties are taken to have intended the ■arbitrator’s award to be final and conclusive between them, and this whether they expressly so agreed or not. But the rule applies more particularly to the arbitration of disputes and controversies wherein the arbitrator exercises both ministerial and judicial functions, and not to ministerial acts alone, such as valuations, calculations, or measurements. As to the latter, the authorities do not seem to sustain the position that the decision of the person agreed upon to make measurements or calculations is final and conclusive, in the absence of an express stipulation to that effect, or unless an intention to be bound is fairly inferable from the terms of the agreement. The intention of the parties to be bound must appear either expressly or by fair implication. 2 Am. & Eng. Enc. (2d Ed.) 554, 556, and cases cited; Russell, Arb. 40. There was no express agreement in the case at bar making the scale of the surveyor general final and conclusive.
But it is the contention of appellant that, without a stipulation •of that nature, the parties are bound, within the authorities, and
The case of Jesmer v. Rines, 37 Minn. 477, 35 N. W. 180, is also cited by appellants in support of their contention, but the precise question was not presented in that case. There the plaintiff sold to defendant a quantity of saw logs then in what the contract designated as the Dunham boom, and the agreement between the parties was that they were to be scaled in the Mudgett & Bines boom, at Princeton. The place of scaling was the question involved in that case, and whether the scale made was final and conclusive was not considered -or decided. The court held simply that, as the parties had agreed that the scale should be made at the boom of Mudgett & Bines, they were bound by that agreement, and that that place was the proper one for the scale to be made.
There was no stipulation in the contract in the case at bar that the scale made by the surveyor general should be final; nor was-
If the parties intended to give greater effect to the scale made by this officer, it should have been expressly so stipulated in their contract, or the intention to do so should fairly appear from the terms of their agreement. If we are right in this view, it follows that the scale made by the surveyor general was subject to correction for mistake, and it was unnecessary to show fraud or inaccuracy amounting to bad faith. His scale was prima fade evidence only of its correctness. For these reasons the trial court properly granted a new trial. Of course, the question whether the scale made by the surveyor general, or that subsequently made at the instance of defendant after the logs had reached Red Wing, was correct, is a question of fact for the jury to determine upon a consideration of all the evidence and all the facts shown.
The contention of appellants that by accepting the logs, sawing them into lumber, and disposing of them, defendant is'estopped from disputing the correctness of the St. Paul scale, cannot be sustained. Whether its conduct in this behalf amounted to an acceptance of the logs, and estopped it from questioning the cor
Order affirmed.