Mississippi River Logging Co. v. Robson

69 F. 773, 16 C.C.A. 400, 1895 U.S. App. LEXIS 2431

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 5, 1895
• Docket: No. 540
• Status: Published

Opinion

THAYER, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

It was insisted on the oral argument of the case by counsel for the plaintiff in error, and the point is elaborated to some extent in the brief, that the circuit court erred in holding that the logging com patty was not relieved of its obligation to further perform its contract by the tilling up of Beef Slough,which was occasioned, as it seems, by an extraordinary flood in the Chippewa river, that occurred in the year 1884. It was insisted that the Ailing up of the slough was an act of God, which rendered further performance of the contract impossible, and operated to discharge the same. This question was considered at considerable length in the opinion of the learned trial judge, and was decided adversely to the contention of the logging company on two grounds: First, for the reason that the flood which filled up the slough was an event which might reasonably have been anticipated, and against the occurrence of which the logging company ought to have protected itself by a proper stipulation in the contract; second, for the reason that the filling up of Beef Slough did not in fact render it impossible for the logging company to do substantially all that it had contracted to do. The circuit court held that by making use of some other slough near the mouth of the Chippewa river for the purpose of sorting and brailing logs, as the court held it had the right to do, the defendant company might have fulfilled all the obligations which the contract imposed. Robson v. Logging Co., 61 Fed. 893, 900, 901. The reasoning as well as the decision of the circuit court on tills branch of the case meets with our approval; and, inasmuch as the alleged error is not specified in the assignment of errors in accordance with the requirements of rule 11 of this court (11 C. C. A. cii., 47 Fed. vi.), it will not be further noticed.

It is also contended that the contract sued upon lacked mutuality, and for that reason was not enforceable against the logging company. This is but another form .of stating the proposition that the logging company’s promise to take possession of all the plaiiitiff’s logs and timber in the Chippewa river, and to drive the same down that river, and to brail and deliver them ready to be taken in tow by towboats, for a certain specified compensation, to be paid by the plaintiff, rested upon no consideration, because the plaintiff did not expressly promise to deliver any logs or timber to be so handled. We may concede it to be an elementary rule that, so long as a contract is wholly executory, neither party thereto is hound unless both are bound. A promise by one party to do a given act, nothing having been done or paid in consideration therefor, cannot, as a matter of course, be enforced unless the opposite party either expressly or by necessary implication promises to do something in return. The rule in question is well illustrated by the following cases: Campbell v. Lambert, 36 La. Ann. 35; Railway Co. v. Dane, 43 N. Y. 240; Stensgaard v. Smith, 43 Minn. 11, 44 N. W. 669; Bailey v. Austrian, 19 Minn. 535 (Gil. 465); Mers v. Insurance Co., 68 Mo. 127; Chambliss v. Smith, 30 Ala. 366; Willetts v. Insurance Co., 45 N. Y. 45; Clark, Cont. 168, and cases there cited. We think, however, that the contract sued upon does not fall within the rule last stated. The special finding show’s that, prior to the execution of the agreement, certain differences and disputes in regard to the handling of the plaintiff’s logs and timber in the Chippewa river, and the prices to be paid therefor, had arisen between the parties to the contract. The contract also recites that it was entered into by the respective parties, "for the purpose of settling all said differences.” Now, while the agreement does not expressly state that, when signed, it should operate as a settlement of past differences and a relinquishment of all claims growing out of previous transactions, yet, by necessary implication, such was the effect of the agreement when executed and delivered. By entering into the contract, the plaintiff evidently released and absolved the logging company from whatever claims he had theretofore preferred against it growing out of the transportation of logs and timber on the Chippewa river. By a necessary inference, that which was declared to be the purpose of the contract, to wit, the settlement of past differences, was accomplished when the contract was signed and delivered. Neither party could thereafter maintain an action against the other founded upon a claim that was then in controversy if it related to the transportation of logs or timber on the river in question. It results from this view that the contract in suit cannot be regarded as having been wholly executory when it was signed and delivered. By the very act of signing and ■delivering the agreement, the plaintiff manifestly released claims against the logging company, of some kind, that were then in dispute, which might have become the subject-matter of an action at law, if, indeed, a suit was not then pending. This in itself constituted a sufficient consideration for the defendant company’s promise to drive and brail, for a specified price, such logs as the plaintiff might thereafter place in the Chippewa river. The point, therefore, that the contract was voidable when executed, for want of mutuality, in our opinion, is not well taken.

Another point that is urged with some force is that "the contract, being silent as to its duration, was terminable at the pleasure of either party.” It is obvious, we think, from the relations of the parties and the circumstances under which the contract was executed, that if this idea that the contract might be terminated at the pleasure of either party had been suggested to the plaintiff or to the defendant, particularly to the former, prior to the execution of the agreement, it would never have been executed in its present form. The logging company had been engaged for some years in the business of driving logs down the Chippewa river, and in placing, them in booms or slougbs, where the logs of different owners could be assorted, brailed, and formed into rafts in a fit condition to be towed to their destination at various points on the Mississippi river. The work of sorting the logs ivas done by a boom company which was under the domination and control of the logging company, and was. merely one of the subagencies by which that company placed the logs o'f different owners in the Mississippi river in a condition to be towed. This was not a temporary employment of the logging company in which it had been engaged for a few months or a single season, but it was its permanent occupation; and it is fair to infer from the special finding that it had created facilities for driving, booming, and assorting logs which probably gave it a monopoly of that business on the Flambeau and Chippewa rivers. The plaintiff, on the other hand, was the owner of a mill at Lansing, on the Mississippi river. He also owned some pine lands on the head waters of the Flambeau and Chippewa rivers, and drew his supply of logs largely from that source, and expected to do so for some years to come, until the sup-lily ivas exhausted. He had previously employed the logging company to drive and brail such logs as were cut on his lands, and disputes had arisen as to the mode of doing the work, and as to the prices that ought to be charged therefor, which controversies the parties not only desired to settle, but to guard against the recurrence of similar disputes in the future. Under these circumstances, ii: would be unreasonable to suppose that the parties to the contract contemplated a merely temporary agreement which either could, terminate at will. Such an agreement would not furnish adequate protection to either party against future controversies which both desired to avoid. It would not settle for any definite period the compensation to be paid for the services to be rendered by the logging company, which must have been a matter of vital importance to the plaintiff, inasmuch as the logging company controlled practically all the facilities on the Chippewa and Flambeau rivers for driving and sorting logs. Moreover, an agreement that could be terminated at the pleasure of either party might prove to be a very inadequate consideration for the settlement of claims growing out of past transactions that had been surrendered and discharged -when the contract in suit was executed. Aside from these considerations, which render it highly improbable that an agreement was contemplated which could lie terminated at any time, the contract, as made, contains provisions which clearly indicate that the parties expected it to continue in force for a period of some years at least. It contained a stipulation that the payments to be made by-the plaintiff should be made “annually at the close of each season’s business.” It also contained a statement that the contract was entered into “for the purpose of settling differences and providing for the future,” which latter clause would be clearly inapt if the contract was entered into with the understanding that either party might terminate it at his mere pleasure or convenience. We entertain no doubt, therefore, of the intention of the parties to make a contract of some years’ duration, which in the meantime could not be revoked by either party. Nevertheless, the important question remains whether the contract, when considered in relation to the circumstances under which it was made, furnishes the means of determining its possible duration. This inquiry is essential, because, when a contract calls for the rendition of services, if it is so far incomplete that the period of its intended duration cannot be determined by a fair inference from its provisions, either party is ordinarily at liberty to terminate it at will on giving reasonable notice of his intention to do so. Irish v. Dean, 39 Wis. 562; Coffin v. Landis, 46 Pa. St. 426, 430. See, also, Wood, Mast. & S. 265, and Mechera, Ag. § 210.

For the reasons that we have already suggested, we have reached the conclusion that it may be fairly inferred from the terms of the agreement, and from the circumstances which led to its execution, that the parties to the instrument intended that it should continue in force and remain operative as long as the plaintiff was actively engaged in removing the timber from the lands which he then owned on the head waters of the Flambeau and Chippewa rivers. The fact that the plaintiff owned lands thus located, and found it necessary to make use of the Chippewa river as a vehicle of transportation; the fact that the logging company was engaged in the business of driving and assorting logs, and that it controlled most of the facilities for doing that work successfully; and the further fact that controversies had arisen, and were liable to arise in the future as long as the parties occupied such relation,—were the several circumstances which led to the execution of the contract. So far as appears, neither the plaintiff nor the logging company had any intention, when the contract was signed, of abandoning the business in which they were respectively engaged; and neither party seems to have anticipated a change in their relations or in the existing mode of doing business that would render the provisions of the contract inequitable or burdensome for some years to come. It was doubtless expected that in the course of a few years the timber on the lands then owned by the plaintiff would be exhausted ; that the conditions that had given birth to the agreement would then cease to exist; and that on the happening of that event, and not before, it would cease to be operative. There is nothing in the provisions of the contract or in the situation of the parties that would warrant us in holding that it was probably intended that the logging company should have the right to terminate the contract before the plaintiff had exhausted the timber on the lands which he then owned, while there are very persuasive reasons to support the contrary view, that it was contemplated by the parties that it should remain in force until that event had transpired. It is a fundamenial rule that, in 'construing a contract, effect should be given to the intention of the parties, and that in ascertaining that intention the court should place itself, as nearly as possible, in the position that they occupied when the contract was made. It frequently happens that the full scope and purpose of an agreement cannot be accurately ascertained without considering the subject-matter to which it relates and the circumstances under which it was executed. When a case of that kind occurs, and the necessity arises for going outside of the language employed, for the purpose of ascertaining its meaning or the probable intention of the parties thereto, a court is always privileged to do so, and may properly consider any fact or circumstance which sheds light on the transaction. The case at bar is one which, in our judgment, demands a liberal application of this doctrine. While the parties to the contract have failed to state Jhow long it should continue in force, they have, nevertheless, manifested an intention to enter into a business arrangement with each other which should last for some years and until a certain expected event had occurred. We think, therefore, that the happening of that event should be held to limit the duration of the contract, and that until such time the logging' company remains bound by its provisions.

A. number of exceptions were also taken to the action of the trial court in admitting testimony. As the case was tried by the court, without the intervention of a jury, none of these exceptions seem to us to be of sufficient importance to deserve special notice, save one, which relates to the introduction of certain scale books that were offered for the purpose of allowing the quantity of logs that had been cut from the plaintiff’s land. The circuit court considered the admissibility of this testimony at some length, and, as we fully concur in the view taken by the trial court, we cannot do belter than quote the following passage from its opinion:

“Tlio evidence shows that as tho logs are cut in tho woods they are scaled— that is, measured to ascertain their contents—by persons known as ‘camp scalers,’ and che meas:cements aro entered upon cards. At the close of the day tho measurements thus taken aro entered upon tlie scale book. From time to time, inspectors visit the camps, and verify the contents of the scale books by counting and remeasuring a sufficient portion of the logs to satisfy them of the correctness of tho books. If errors are detected, the book is corrected. After verification and correction by the inspectors, the scale book is sent to the owner of the logs, and payment is made to the log cutters and handlers according to the contents of the book, which is thus made the evidence upon which the owner of the logs must make payment to his employes, it is clearly to tho interest of the log- owner that these scale books shall not show the cutting of any greater number of logs than the facts will justify. Tho mode by wiiio.li the entries are made on the scale book is such as to assure accuracy therein. The parties who ent and haul the logs, and the owner, who is to pay for the cutting and hauling, act upon the contents of the books, and deem them to be proper evidence of the facts therein stated. That which is received and acted upon by persons engaged in any line of business as competent evidence is ordinarily admissible when the same fact becomes a matter of inquiry in judicial proceedings. It would seem, therefore, that the scale books should be admitted in evidence, unless it appears that there is better evidence within the power of plaintiff to produce. It is said that the camp sealers should have been lmuted up, and their testimony be introduced, in order to show the number of logs, and the contents thereof, cut on plaintiff’s land during the lime in controversy. Wliat is sought to be proved is the result, in number and quantity, of the logs cut. When the scalers made the count and measurement, two records thereof were made,—one in the memory of the scaler, tho other in the scale book. Which is now the best evidence? Years have elapsed. The entries on the scale books remain unchanged. They are now just what they were when originally made. Can the same be said of the record made upon the memory of the scalers? If the scalers had been, produced, and had testified that in the years past they had counted and measured a large quantity of logs, and had at the time entered the results upon scale books prepared for the purpose, and that, as they now remembered it, the number and quantity were so and so. but, upon the production of the scale books, they showed a different quantity and measurement, which should control? The rule requiring the production of the best evidence of which the case is susceptible is intended to guard against fraud and mistake, and to aid in arriving at the truth. That evidence which is the least liable to mislead is the best evidence; and it cannot be maintained that there is more reliable evidence of the number and quantity of the logs cut upon plaintiff’s land than the scale books wherein the entries were made from day to day by the camp sealers, and which were revised and corrected by the inspectors. The books were properly identified, and the inspectOTS who revised them at the different camps testified to their correctness; and, under these circumstances, I hold that the books cannot be excluded upon the ground that it appears that there is better evidence addueible upon the question of the number and quantity of logs cut by plaintiff, and placed in the waters of the Chippewa and Flambeau rivers.”

For the reasons so well stated by the trial judge, we entertain no doubt that the scale books in question were properly received in evidence. They appear to have been kept under conditions that were calculated to prevent mistakes therein, and to insure a high degree of accuracy. They were also identified by witnesses who were familiar with their contents, and whose special duty it was to see that they were properly and accurately kept. Under these circumstances, we think that the trial court would have erred if it had excluded the books on the ground that they had not been sufficiently identified, or that they were not the best evidence. Finding no error in the action of the circuit court to which our attention1 has been specifically directed by the assignment of errors, the judgment of the circuit court is hereby affirmed.