61 F. 893 | N.D. Iowa | 1894
Upon tke final argument of this case, It was urged by counsel for defendant that the facts developed in the evidence are such as to show that the contract, when applied to its subject-matter, must he held to he one terminable at the option of the defendant. I do not think the evidence presents the question in any aspect other or different from the one considered when the case was submitted on demurrer, and when it was held that the contract was not one terminable at will. See opinion, 43 Fed. 364. I adhere, therefore, to the views therein expressed upon this question.
It is further contended that the contract does not, in terms, hind the -plaintiff- to cut or deliver any timber, and that, therefore, the
“Beyond doubt, tbe written agreement went into operation, and it is not even suggested that the department and division commanders ever expressed any disapproval of its terms or conditions. * * * Suppose it to be true that the quartermaster general might terminate it, if he should see fit. It is a sufficient answer to the suggestion to say that he never did interfere in the matter, and that the contract continued in full force and operation throughout the whole period 'for which the necessary supplies were purchased by the' United States in open market. Where the defendant has actually received the consideration of a written agreement, it is no answer to an action brought against him for a breach of his covenants in the same to say that the agreement did not bind the plaintiff to perform the promises on his part therein contained, jn'ovided it appears that the promises in question have in fact been performed, in good faith, and without prejudice to the defendant. Add. Oont. (6th Ed.)" 15; Morton v. Burn, 7 Adol. & E. 25. Agreements are frequently made which are not, in a certain sense, binding on both sides at the time when executed, and in which the whole duty to be performed rests primarily with one of the contracting parties. * * * Cases often arise where the agreement consists of mutual promises, the one promise being the consideration for the other; and it has never been seriously questioned that such an agreement is valid, and that the parties are bound to fulfill their respective obligations.”
In tbe case now before tbe court, it may be true that tbe defendant company could not perform its agreement to drive and deliver tbe logs unless they were cut and placed in tbe streams by tbe plaintiff, and that tbe contract, in terms, does not bind tbe plaintiff to cut any logs whatever; but this only shows that in that particular tbe agreement of tbe defendant was dependent upon tbe prior action of the plaintiff, and it has never been held that because tbe covenant or agreement of tbe one party cannot be performed until tbe other has taken tbe necessary action, therefore the contract is not enforceable. Tbe contract in question expressly recites, and tbe evidence shows, that when tbe contract was entered into tbe plaintiff then bad in tbe waters of tbe Chippewa and Flambeau rivers a large quantity of logs, already cut, and ready for driving. In regard to these
Objection is also made to the enforceability of the contract on the ground that there is no time fixed within which the plaintiff can be required to cut; the logs upon his lands, and that tin; defendant company might, therefore, be required to be prepared, at large expense, to drive and care for the logs for an unlimited time in the future. When ihe time of performance is not fixed, in express terms, in a contract, Hie rule is that it must be had within a reasonable time; and, in determining what is a reasonable time, regard is had to the situation of both parties. In legal effect, the contract between the parlies requires of the plaintiff that he shall cut all the timber he intends to have driven under this contract within a reasonable time. If the plaintiff should delay the cutting of any portion of the timber for an unreasonable time, It would be held that thereby he had lost the right to demand performance on part of the defendant. It is not claimed that in fact there has been any delay in this particular on part of the plaintiff. When the defendant sought to terminate the contract, in the spring of 1889, it was then engaged in driving logs down the Chippewa river, and it still continues in the same employment. There is no force, therefore, in the suggestion that a heavy burden might be placed upon the defendant if the contract is held enforceable, by reason of the fact that no time is named for its final completion, because the plaintiff can claim only a reasonable time in which to cut the timber in question, and it is not claimed that the plaintiff has not exercised due diligence in this particular.
On behalf of the defendant, it is further claimed that, granting that the contract was originally valid and enforceable, nevertheless, by reason of the effect of the high water occurring in 1881 in the
“There can be no question that a party may, by an absolute contract, bind himself or itself to perform things which subsequently become impossible, or pay damages for the nonperformance; and such construction is to be put upon an unqualified undertaking, where the event which causes the impossibility might have been anticipated and guarded against in the com tract, or where the impossibility arises from the act or default of the promisor. But, where tha event is of such a character that it cannot be reasonably supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words, which, though large enough to include, were not used with reference to the possibility of, the particular contingency which afterwards happened.”
Assuming for the moment that the filling up of the entrance to Beef slough rendered the contract impossible of fulfillment, can it be said that the possibility thereof was not within the knowledge of the parties? Is it not a fact known to all persons engaged'in business upon the Mississippi river and its tributaries, like the Chippewa, that changes in the channel are constantly taking place; that sandbars are created in some places, and are washed away in others; and that there is not only a possibility, but a probability, that, in the course of years, deflections in the current will take place, of such magnitude as to open new outlets for the passage of the water, and to close those formerly existing? Can any one travel along the Mississippi or Chippewa rivers, and not see convincing evidence of the liability of these changes, taking place? These changes are not alone caused by very high floods, but are also the result of the constant action of the waters in these streams. Can it, therefore, be fairly claimed that the closing up of the entrance to Beef slough was such an unlikely event that it could not have been anticipated, and have been provided for in the contract of the parties? But, however this may be, is it true, in fact, that the closing of the entrance to Beef slough prevented a fulfillment of the contract on part of the defendant? The determination of this question involves the construction of the contract as a whole, which, in turn, requires the reading, of the terms of the contract in the light thrown thereon by the situation and relation of the parties when the agreement was made. The recital in the contract, and the other evidence in the case, show that at the date of the contract, and prior thereto,
The usé of the slough for booming purposes was a mere means to the end proposed by the contract, and, if the end proposed can be reached by other means, it cannot be said that the fulfillment of the contract is impossible. If the result of the flood of 1884 had been such as to change the course of the Chippewa river so that it ceased to flow into the Mississippi river, or if the character of the river had been so changed that it could no longer be used for logging-purposes, then we would have had a state of facts to. which the rule contended for by the defendant company would be applicable. It would then be apparent that the defendant company could not receive the logs of plaintiff in the waters of the Chippewa river, and drive them to the Mississippi river, and such a change in the
It is said, in argument, that the booming expense is greater at West Newton slough than it formerly was at Beef slough, and that this increased expense ought not to be put upon the defendant. It will be noticed that the charges to be paid by plaintiff for driving the logs, and for brailing and delivering them ready for rafting, are fixed absolutely in the contract, but the charge for booming is not thus fixed. It is agreed that the boom company charge
Before passing to a consideration of the facts bearing upon the question of the damages, there is another legal proposition presented by the counterclaim pleaded by the defendant. The evidence shows that after the signing of the contract, and up to April, 1889, the defendant company drove, and delivered to the plaintiff, a large quantity of logs cut from lands not owned by plaintiff at the date of the contract, and charged therefor, and has been paid, only the contract prices for the services thus rendered; and in the counterclaim it is pleaded that, in fraud of defendant’s rights, the plaintiff caused it to receive and. drive these logs in the belief that they were cut upon plaintiff’s lands, and. were therefore within the contract. It appears from the entire evidence that before and at
This brings us to the question of the quantity of timber which the defendant company wrongfully refused, in April, 1889, to receive and handle under the contract. A preliminary question arises upon the proposition that the scale hooks offered in evidence by the plaintiff are not competent, not being the best evidence upon the point of the quantity of logs cut from plaintiff’s land. The evidence shows that, as the logs are cut in the woods they are scaled—that is, measured to ascertain their contents—by persons known as “camp scalers,’7 and the measurements are entered upon cards. At the close of the day the measurements thus taken are entered upon the scale hook. From time to time, inspectors visit the camps, and verify the contents of the scale books by counting and remeasuring a sufficient