Stevens v. Haskell

70 Me. 202, 1879 Me. LEXIS 147

• Court: Supreme Judicial Court of Maine
• Decided: September 10, 1879
• Status: Published

Opinion

Appleton, C. J\

This is an action of assumpsit upon a count for money had and received by Going Hathorn, defendant’s testator, to the amount of $400 from the sale of the waste wood made from his timber sawed by him at his mill in Pittsfield.

On 22d November, 1873, the plaintiff leased "to Hathorn & Pushaw his mill below Hermon Pond with the house, stable and mill yard “to manufacture all lumber of various kinds that they want to manufacture during the year 1874, commencing on the first day of March . . all for the rent of seventy-five cents per thousand feet for said lumber and the waste wood while manufacturing said lumber,” &c.

Pushaw sold out his interest to Hathorn, whose estate the defendants represent.

At the April term, 1875, in this county the plaintiff commenced an action on the above contract against Hathorn & Pushaw for rent due on which he recovered judgment. In that suit no claim was made for waste wood. Indeed, the plaintiff has had all the waste wood accruing from the lumber sawed at liis mill under the contract of November 22d — before referred to.

The proceeds of waste wood sought to be recovered in this suit are from the sales of the waste wood arising- from the testator’s lumber sawed by hiui at his mills in Pittsfield, some twenty miles or more distant from the plaintiff’s mill in Hampden.

The plaintiff offered to show that it was the intention and understanding of the parties when the contract to rent the mill was made that the testator’s lot near the mill was to be stripped and all the lumber sawed at the plaintiff’s mill.

But this is directly in contradiction of the written agreement of the parties. Hathorn & Pushaw were “to manufacture all lumber of the various kinds they want to manufacture, during the year 1874.” No specific amount to be manufactured is fixed or determined. They were to manufacture what they wanted, not what they did not want to manufacture.

The parol evidence offered was entirely inadmissible. It materially varies the written contract deliberately entered into by the parties. Doyle v. Dixon, 12 Allen, 578. Shaw v. Shaw, 50 Maine, 95.

The rent is seventy-five cents per thousand for manufacturing said lumber “and the waste wood made while manufacturing said lumber.” The waste wood is specially confined to that arising from the lumber manufactured at the plaintiff’s mill. He can claim no other. It is absurd to suppose that either had reference to the waste wood of lumber manufactured elsewhere.

The lumber manufactured by defendant’s testator at his mill in Pittsfield was his own. The waste wood from the lumber manufactured there was his. The plaintiff has no interest, nor claim to it, nor in the proceeds derived from its sale.

Besides, the plaintiff, has recovered judgment in one action upon his contract in which he alleged that “the said Going Hat-horn and George N. Pushaw their memorandum oí agreement as aforesaid has not kept in any way, shape or manner, but hath broken the conditions thereof.” It would seem by the authorities cited that the plaintiff could not split his cause of action and maintain two suits. But it is unnecessary to consider the question, as upon other facts proved or admitted the plaintiff has no cause of action whatever. McCaffrey v. Carter, 125 Mass. 330. Clemence, 119 Mass. 473.

Judgment for the defendants.

Barrows, JDaneorth, Virgin, Peters and Symonds, JJ., concurred.