Shores Lumber Co. v. Stitt
78 N.W. 562
Wis.
1899
Check Treatment
Marshall, J.

The first assignment of error is that the circuit court erred in finding a parol modification of those portions of the written contracts which rеquired a delivery of 35,000,000 feet of logs per year. Whether such modification was made or not was a question of fact, and the finding in regard to it is binding on this court unless we can say it is against the clear preponderance of the evidence. After a careful cоnsideration of that part of the record bearing'on the subject we are unable to disturb the decision of the trial court, testing it by the rulе referred to. To our minds the evidence fairly preponderates in favor of such decision rather than against it.

The next contention made is that plaintiff did not convey to defendants the railroad right of way, and that the finding on that subject is wrong; hence that the failure tо allow plaintiff compensation for the. use of such right of way is also wrong. Whether that finding is correct or not turns on the construction of the bill of sale. That seems to convey ‍​‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​‌​​‌​‌‌‌‌‌​​‌​​​​​​‌​‌‌​​‌‌‍the entire railroad property, when viewed in the light of the circumstances of the transaction of which the making of it formed a part, and in the light of the construction which the parties themselves gave to the instrument. That such instrumеnt will admit of two constructions is quite evident. The descriptive part is very general. First, there is *454language conveying all of the plaintiff’s cаmp and logging outfit, and that is followed by specifications of the different kinds of property intended by the general language, which, as to the railroad property, is in the following words: “ One locomotive, eighteen cars, and all the rail and railroad material of еvery name and nature.” The railroad property consisted of a right to use the bed upon which the rails were laid, and the rails and rаilroad equipment as well. It was one entire property in use and for use in the logging operations necessary to the furnishing of stoсk for plaintiff’s sawmill, which was the purpose of the contracts with the defendants and the conveyance of such property tо them by the bill of sale. In carrying out the terms of the bill of sale, the railroad property as it then existed was turned ‍​‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​‌​​‌​‌‌‌‌‌​​‌​​​​​​‌​‌‌​​‌‌‍over to defendants and was thereafter used by them up to the time of the trouble out of which this litigation grew, without any intimation on the part of plaintiff that the transfеr did not include the entire railroad outfit. It appears very plainly that such was the intention and that such intention may fairly be attributed to the language of the bill of sale, in the light of all the circumstances leading up to the making of the logging contracts and what occurred afterwards, as we have before stated. That was the conclusion of the trial court, with which we fully concur.

It is further contended that the customary way of cutting pine timber in Michigan was discussed between the parties at the time of and before the making of the contrаcts, and became a part thereof, and was referred to therein by the requirement that the timber should be cut in a workmanlike manner. The contracts were made and to be performed in the vieinity of Chequamegon Bay, 'Wisconsin. We know of no rule of law that will sustain the contention that a custom existing at some other place, quite remote from that of the contracts, can be said to hаve been in the minds of the parties and to have become a part of such contracts. Where *455no particular manner of performing a contract is specified in it, the usage at the place of the contract is essentially a part'of it, the sаme as though, actually written into it. If we were to test the requirements of a written contract by ‍​‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​‌​​‌​‌‌‌‌‌​​‌​​​​​​‌​‌‌​​‌‌‍the usage at some other placе than that of its performance, it would involve a violation, of the well-settled rule of law that the latter place governs, and thаt other rule that the terms of a written contract cannot he varied by parol.

The learned counsel urged with confidence thе rule that a custom, in order to be binding between parties to a contract, must be brought home to the knowledge of both of them, -eithеr by showing actual knowledge on their part at the time of the making of such contract, or the existence of the custom for so long a time as to raise a presumption that they had such knowledge and entered into the contract with reference to it. That rule of course prevails in case of an attempt to annex to a contract some incident not expressed therein, аs in the case of Hewitt v. John Week L. Co. 77 Wis. 548, where the question was whether ‍​‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​‌​​‌​‌‌‌‌‌​​‌​​​​​​‌​‌‌​​‌‌‍the owner of a sawmill, under his contract to saw logs by the thousand, was entitled to the slabs. There is a difference between evidence of usage to establish a custom for the purpose of annexing that as an incident to a contract, and the same kind of proof to show the meaning of some word or term used in a contract. In the latter situation the meaning of the term as understood at the. time and place of the contract governs, whether both of the parties knew of such meaning or not. They are presumed to contract with reference to the meaning of words and terms used by them, as such words and terms are understood at the place of their contract; therefore, proof of such meaning is all that is required to enable the court to determine just what the language of the' contract was intended to express. That is the effect of Walker v. Syms (Mich.), 76 N. W. Rep. 320, citеd by respondents’ counsel, ‍​‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​‌​​‌​‌‌‌‌‌​​‌​​​​​​‌​‌‌​​‌‌‍and the doctrine is elementary. Jones, Com. & Tr. Cont. § 63.

*456The expression, “place of the contract,” as used here, means the place of its making, unless its terms indicate another place for performance; then such other plаce is the one called for by such expression, and the parties are presumed to have agreed to be governed by thе usage at such place, as to the interpretation of words and terms requiring that in order to determine the meaning of the language used by them, as effectually as if such agreement were plainly expressed in the contract.

It follows that the decision of the trial court was right in holding that the term “ workmanlike manner ” referred to the customary way of cutting timber in the vicinity of Che-quamegon Bay, the plaсe of the contract, and that conversations as to the method of doing such work elsewhere could not be considered аs forming any part of the agreements evidenced by the writings.

The foregoing disposes of all the questions that could be profitably discussed in this opinion. ETo error is perceived in the record.

By the Court. — The judgment is af&rmed.