Sturdevant v. Mittelstaedt

166 A.D. 943, 151 N.Y.S. 298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1915
• Status: Published

Opinion

Kellogg, J.:

The action is brought to recover upon an agreement whereby the defendants were to pay the plaintiffs four dollars and fifty cents per 1,000 feet for skidding and drawing to the mill the logs upon certain lands controlled by the defendants. The defendants were to have the trees cut into logs and “ the logs trimmed and butted and ready for skidding.” From time to time when the logs were delivered at the mill, if the butts were rotten, shaky or hollow, the defendants omitted such defective parts from the measurement. The plaintiffs contended that the defendants were to butt the logs ready for skidding, and that they were entitled to pay for drawing any logs which the defendants had prepared for skidding. Before all the logs agreed upon had been drawn the plaintiffs discontinued the performance of the contract and brought an action to recover for the work already done. The question for the jury was a pure question of fact. The evidence tended to show that some of the butts which the defendants refused to measure were in fact used by them. It evidently was the right of the defendants to trim the butts in the woods in the manner in which they wanted them drawn, and apparently the plaintiffs were entitled to pay for the actual measurements drawn. The defendants claim that the plaintiffs had breached the contract in refusing to perform it, and sought to counterclaim damages, and feel aggrieved because their counterclaim was not considered. If the plaintiffs are right in then* contention that the logs should have been measured as drawn, then necessarily the counterclaim falls to the ground. The jury have adopted the plaintiffs’ theory and have in substance found that the plaintiffs stopped skidding and drawing because the defendants were breaking their contract and not solely for the reason that they were not receiving proper compensation. They might well claim they were not receiving proper compensation considering the manner in which the logs were measured. The verdict is fairly sustained by the evidence and the judgment should be affirmed, with costs. Judgment and order unanimously affirmed, with costs.