128 Pa. 163 | Pennsylvania Court of Common Pleas, Sullivan County | 1889
Opinion,
This litigation grows out of a written contract for the manufacture of lumber. The questions raised relate to the extent and manner of the performance, and are properly within the jurisdiction of a court of law. The facts as found by the master or as gathered from the bill, answer and proofs are these:
Sprout was the owner of about three hundred acres of timber land in Sullivan county. Mints was the owner of a portable saw-mill, seeking employment for it and for himself. They entered into an agreement in writing on January 21, 1885, by which Mints agreed to remove his mill to Sprout’s timber land, to cut and peel the hemlock and pile the bark along the main road, and to cut logs, stock and saw “ any or all varieties of timber,” and pile the sawed lumber at the side of the main road. He was to receive $2 per cord for peeling and piling the bark and $4.25 per thousand feet for the cutting, stocking, sawing
Mints erected the mill upon the land and began work under his contract, but Sprout erected no steam-house to steam the flooring, and Mints put no planer in his mill to plane it. Differences arose as to the mutual rights and obligations of the parties, and in December, 1885, Sprout prepared and served on Mints what is appropriately called an “ order,” which contained nine distinct directions. The first was, “ not to cut or injure any standing timber on the premises without further orders from me.” The second required Mints “ to cut only such logs as will make inch boards suitable for working into flooring of two best grades No. 1 and No. 2.” Then follow seven other directions relating to the manner of sawing, splitting, planing, matching, and piling the flooring, the last of which is, “ you are hereby notified that in so far as steaming lumber spoken of in former articles, the same for the present is to be dispensed with. This order to remain in full force until others are given by me.” Mints continued sawing up his stock, and, as he alleges, into the best and most salable lumber it would make, but did not make any planed and matched flooring, for the reason, as it is fair to presume, that Sprout had not erected the steam-house, and the contract did not require him to plane and match the flooring until after it had been steamed in a steam-house to be provided by Sprout. He also treated the directions Nos. 1 and 2 in the order as not binding on him, because not calculated or intended to subserve “ the best interests of all parties,” but as subversive of his contract rights.
Because Sprout did not obey the order of December, 1885, this bill was filed and the court was asked to issue an injunc
The master’s findings though wanting in orderly arrangement are, in effect, that Mints manufactured the lumber in accordance with the agreement, and he recommended that the bill be dismissed and the injunction dissolved. The learned judge overruled the master on two points; first, as to the effect of the written contract, and next, as to the character of the “ order ” of December, 1885. As to the contract, he says: “ Mr. Sprout was to put up the steam-house and furnish the steam pipes for conducting the steam thereto. He has not done this. But if he chooses to have his flooring made without being first steamed, we do not see how Mr. Mints can object, so long as he gets the stipulated price for the work.” The most obvious reason for objection is that it is not in accordance with the contract. He did not agree and for that reason he is not bound to plane and match the lumber, until it has been “ steamed sufficiently to drive out the natural sap and facilitate seasoning.” Sprout cannot by his “ order ” relieve himself from his contract obligations, any more than Mints can relieve himself without the consent of Sprout. It requires the assent of both parties to modify, as well as to make a contract. It may be that the process of planing and matching is more easily and expeditiously managed after steaming than before, so that the order dispensing with the steaming process, while reducing the cost to Sprout, would have increased the cost to Mints of producing the flooring. This was an additional rea
The question about the extent of the release of Mints from the duty to plane and match, is of secondary consequence in view of the fact that the contract did not impose the duty, until the preliminary process of steaming in a steam-house to be provided by Sprout, had been completed. The master found an express release as to all the lumber. The court thought it was limited to the first fifty thousand feet. But no release was necessary until the obligation to plane and match had attached under the provisions of the contract. This could not happen till the steam-house was provided, and the duty Nto provide it was on Sprout.
As to the character of the order of December, 1885, the learned judge said: “ So far as the order requires the defendant to manufacture flooring, we have already expressed our opinion that it is not subversive of the contract, but strictly in accordance with its provisions; and if compliance with it be ruinous to the defendant, it was his own folly to make such a contract.” Is this correct ? The order directed that no standing timber should be cut without further orders from Sprout. The contract bound Mints to cut and remove all the timber. This was not the exercise of the power to direct the details of the process of manufacture, but an assumption of the right to suspend the process itself. It was not facilitating but subverting the purposes of the agreement, and suspending indefinitely the work under it. Equally objectionable is the direction in the order to “ cut only such logs as will make inch boards suitable for working into flooring of tw'o best grades No. 1 and No. 2.” The contract contemplated the cutting and manufacture of all the logs. Such as would make flooring Sprout had the right to insist should be so used, but how and from what part of the agreement does he derive the right to say that other logs that could be profitably worked into other varieties of lumber, should remain unsawed? We cannot find it in the contract or in the evidence. So far from being “ strictly in accordance with ” the terms of the contract, we think the notice was, in the two particulars now considered, subversive of the purposes of the contract and unauthorized by the reser
We cannot agree, therefore, with the learned judge in his views of the rights of the parties under their contract, or under the order of December, 1885, but we think with the master that no ground for an injunction appears in the evidence. The plaintiff came into a court of equity to complain that the defendant did not obey his order to make, plane and match flooring in accordance with a written contract. But the evidence shows that he was in default in not providing the steam-house in which the preliminary process of steaming could be conducted. He assumed the right to waive his own non-performance and dispense with the steaming process, but this was for the other side to do and not for him. Having reserved the power to direct how the work should be done by Mints, he assumed the power to arrest or suspend it at his will and until it should please him to allow it to be resumed; and, because his jobber did not recognize and obey these unauthorized directions, he comes into equity and asks a chancellor to compel him to obey. We decline to do so.
There is nothing in this complaint of breach of contract that cannot be settled at law. There is certainly nothing in the case as disclosed by the evidence to move the conscience of a chancellor. The plaintiff has no equity on which his prayer for an injunction can rest, or which entitles him to the ear of a chancellor for any purpose, and his bill must be dismissed. When he has erected his steam-house, it will become the duty of the defendant to use it, and to plane and match the steamed flooring; but until then no ground for complaint on that account exists. He who seeks to compel performance by others must show his right to ask it by showing his own performance of all'that is preliminary, and his readiness to perform what is coincident to that which he asks done by others.
The decree in this case is reversed, the injunction dissolved, and the plaintiff’s bill dismissed; the record costs including the fees of the master to be paid by the appellee; each party to pay his own costs.