Shaw v. Davis

7 Mich. 318 | Mich. | 1859

Chhistianct J.:

There was no error, in the admission of Shaw’s letter to E. Davis, of April 24th, 1858. Though written to but one of the plaintiffs below, and therefore, without further evidence, it might have been of no .avail, or required to be withdrawn from the jury when their evidence was closed, yet they had the right to its introduction as one link in the chain of evidence, and to follow it up with evidence tending to show that it related to the business in which both plaintiffs were engaged for defendant; and that, from all the circumstances, it must have. been, or was probably, understood by all parties to be, substantially, a request from the defendant to both the plaintiffs to run the staves therein mentioned.

The subsequent evidence in the case, showing the previous contract between plaintiffs and defendant, for the running of other staves, and the probability, at least, that plaintiffs, at the date of the letter, were engaged in running the staves previously contracted, rendered it at least a fair question for the jury, whether such was^or was not the understanding which all parties had of the letter.

The second error assigned is, that the circuit judge improperly admitted the evidence of the witness, Arthur Hill, showing what it was worth to run butt staves from the Baldwin place to East Saginaw. This objection seems to have been based by defendant below upon the ground that the Baldwin j>lace, though in the county of Saginaw, was “near Tuscola,” and therefore, that the butt staves run from the Baldwin place must be held to be included in the written contract previously entered into, and which were to be run for a specific price. Whether the staves at the Baldwin place were a part of those referred to in the contract, or not, or whether they were a part of those referred to in the letter of Shaw of April 24th, was not a question of law upon which the court was authorized to decide, but a question of fact for the jury, to be determined. from the evidence in the case. It was therefore properly left to the jury, and the second error is not well assigned.

The third error assigned is, that the circuit judge erred in refusing to charge the jury, that in case they found the parties contracted that the plaintiffs should deliver all the butt staves at and near Tuscola, to the defendant at East Saginaw, in that case the plaintiffs were bound to raft and deliver all, and that ordinary care and diligence was not sufficient; and in instructing the jury that, under the contract given in evidence, if the jury found that the said plaintiffs used all the care and diligence that could be used under the circumstances, and all the care that a prudent and cautions man would use to protect his own property, that then the plaintiffs were not liable for any staves lost.

The exceptions upon which this error is assigned, are based entirely upon the construction to be given to the written contract of March 9th, 1858. The counsel for plaintiffs in error claim that, by the true construction of the contract, the plaintiffs below were bound, at all hazards, to deliver all the staves before they could claim pay for running any of them; that no risks incident to the running, and, no loss of the staves, though happening in spite of the utmost diligence on their part, can excuse this literal performance: that such is the obligation which they have voluntarily assumed by the contract itself.

That the plaintiffs below were not common carriers, under this contract, is too evident to require comment; nor does the plaintiff in error insist that they became insurers against all the risks in question, on that ground, but by their express contract.

That there must be risks of considerable magnitude incident to this mode of running staves, there can be no doubt, from the nature of the case; and the evidence also tends to show it. And it can not be doubted that it was competent for the plaintiffs below to assume these risks, if they choose to do so, by their contract. If such was the intent of the parties, as evinced by the contract, they must'/abide by it, unless it should be found clearly unconscionable.

These risks are not expressly mentioned in the contract But the intention of plaintiffs below to assume them is sought to be inferred from the provision of the contract by which they agree “ to take all the butt staves, &c., at and near Tuscola, from the places where they now are, and' raft and run them to Zilwaukie, and land and pile them up on the bank of Saginaw river, on or before the first day of July next ensuing, for the sum of eight dollars per thousand, payable on delivery of all the staves as aforesaid.”

Whether this provision, without reference to any other portion of the contract, could be fairly construed as intended to make the plaintiffs below liable for all risks and loss occurring without their default, and which could not be avoided by ordinary diligence, it is not necessary here to determine; as we are to look to the entire contract, and to the subject matter, for the intent of the parties. It can not, certainly, be presumed, without a clear indication of such an intent, that men of ordinary intelligence would, without compensation, take upon themselves such extraordinary risks, and deliberately agree to lose all the labor and expense of running down these staves, if, without their fault, from accident or causes beyond their control, some of the staves should happen to be lost, and they should fail literally to deliver the whole. The.natural inference, therefore, to be drawn from the contract, and subject matter, would be against such an intention, unless it should appear at least probable from the contract, that the price or compensation was fixed with reference to such risks; in other words, that the compensation fixed exceeded the cost of the work, irrespective of such risks; as it would be preposterous to suppose any sane man would assume such risks for nothing. Now, it not only does not appear from this contract that the compensation was made with reference to these extraordinary risks, but there is strong affirmative evidence, on the face of the contract, that the compensation was fixed entirely irrespective of these risks, and therefore, that neither party contemplated such risks as having been assumed by the plaintiffs. Thus, the contract proceeds to provide, that the plaintiffs were to keep a strict account of the expenses of the rafting, running and piling, and if it should be found to cost over eight dollars per thousand (reckoning fair prices of labor, and not to include in said account the timber on which the staves were to be rafted), the defendant below was to pay the extra expense; provided the entire price of rafting, running, and piling should, in no case, exceed ten dollars per thousand.

This, we think, shows very cleaiiy that the compensation was not fixed with reference to these risks, and therefore7 that neither party contemplated them as being covered by the contract. The provisions of the contract requiring the parties to run all the staves, and that payment was to be made “ on delivery of all the staves as aforesaid ” refer to the extent of the employment, and were intended to indicate that payments were not to be made during the progress of the work, but upon its completion.

The result therefore, is, that the plaintiffs below, like other ordinary bailees, were only bound to ordinary diligence, and that the charge of the court, in this respect, was substantially correct. At all events, if the judge erred at all, it was in favor of the defendant. The former portion of the charge, alone, might have held the plaintiffs to a stricter rule of diligence than the law requires; but of this the defendant could not complain, and the latter portion of the charge expresses the true rule.

The judgment of the court below must be affirmed.

The other Justices concurred.