44 Minn. 514 | Minn. | 1890
The defendant Blackmar appeals to this court from an order of the district court, denying his motion to set aside a judgment taken by plaintiff against him by default, and for leave to answer. A consideration of the answer and of the complaint is necessary. It appears from the complaint that, March 27, 1883, the plaintiff executed to one Bliss a contract to convey some 20,000 acres of land, the value of which consisted mainly in the timber standing upon it. The money consideration for the agreement to convey was stated at $153,147.63, payable at different dates, according to 20 promissory notes of said Bliss; but the contract stated, as a further consideration, that Bliss was to build and keep in operation a saw-mill capable of sawing not less than 10,000,000 feet board measure per year, and to manufacture at it all pine lumber upon the' land, and to transport all the manufactured products of the timber over the plaintiff’s road to an amount equal to the amount of the estimates, being 65,645,000 feet, at certain rates for transportation. Upon the payment of all-said notes, the last of which was to become due May 1, 1892, and the full performance of all the agreements and stipulations of the contract, the plaintiff was to convey the land to Bliss; but in case of failure to pay any note for 60 days after it .should become due, time being expressly declared to be of the essence of the contract, or failure to perform the other stipulations on the part of Bliss, the contract was, at the election of the plaintiff, to become null and void, without any right on his part to any reclamation or compensation for money paid or improvements made or services rendered. There were a great many other stipulations in ,the con
Blackmar immediately entered upon the business of the trust, and, as the complaint alleges, has cut more than 60,000,000 feet of logs and manufactured the greater part of it and sold nearly all the lumber, and has failed to pay said sum of $2.33 per thousand feet upon the timber cut, and has paid plaintiff only the sum of $82,633.95, and is now in default in regard to the payments provided for in said trust-deed in the sum of more than $75,000, and that there is now unpaid of the consideration price in said contract to convey the sum of $132,037.72, with interest from February 1, 1890. There are other charges of defaults and misconduct on the part of said defend
The answer which defendant asked leave to serve contained a denial in general’terms of the allegations in the complaint above specified as to the amounts of logs cut and manufactured, of lumber sold, of the amount paid plaintiff, of the amount of stumpage remaining unpaid, and of the amount unpaid of the purchase price in the contract to convey, and denials of other matters which we do not deem material. The answer then sets forth at great length, but in a very confused way, new matter, in substance: First, that under the trust-deed the amount upon which the trustee was to pay a sum equal to> a stumpage of $2.33 per 1,000 feet upon all logs from which such lumber shall have been manufactured, was to be ascertained, not by any actual measurement, but by the estimates as set out in the schedule attached to the contract to convey, the effect of which would be that if the estimate as to a particular subdivision was 1,000,000 feet, and the actual cut from it 2,000,000, the stumpage of $2.33 per 1,000 was to be paid on the one and not on the two millions. There is nothing in the trust-deed to suggest any such mode of determining the amount of stumpage to be paid for, nor that it was to be paid upon any other than the amount actually cut, manufactured, and sold. There is in the deed no doubt or ambiguity as to that. And that disposes of the affirmative matter secondly set forth in the answer, which was for the purpose of showing that the parties, plaintiff and trustee defendant, in transacting the business so far as it had been transacted, adopted and acted upon the estimates as showing upon how many feet stumpage was to be paid; for, where the terms of a written contract are clear and unambiguous, its meaning is to be taken as expressed in the writing. It is only where there is doubt as to the meaning of the terms used, or the writing is silent or incomplete as to a given point, that the courts in interpreting the contract will resort to a practical construction which the parties may have put upon it.
Order affirmed.