Skagit Railway & Lumber Co. v. Cole

The opinion of the court was delivered by

Scott, J.

— This action was brought in the district court of the third judicial district of Washington Territory, holding terms at Mt. Vernon, by the appellee against the appellant, to recover damages in the sum of $7,575 for an alleged breach of a contract entered into between the appellant and appellee, by which the appellant let to the appellee, for certain terms of years mentioned in said contract, certain lands therein described, and, in consideration of the sum of $1.50 per thousand feet stumpage, sold and gave him license to cut saw-logs, piles and spars upon said lands during said time; and further agreed to furnish to said appellee, at the reasonable market price, all the provisions and logging supplies needed by him during the continuance of said contract. The appellee claimed that he entered upon the performance of his part of the contract, and employed a large number of men, purchased a large number of teams, and invested a large amount of money in camp equipage, tools, etc., and in every respect fulfilled all the conditions of the contract on his part; but that during the months of July and August and the first part of September, 1888, the appellant refused to furnish him logging supplies and provisions, as provided in the contract, and that in consequence of such failure the appellee made thirteen trips from his logging camp to the place of business of the appellant, at an expense of $195, for the purpose of procuring such supplies, but in consequence of the appellant’s failure to furnish them, these trips were made useless j and claimed further that during this period, in consequence of appellant’s failure to furnish such supplies, the business of the appellee was interrupted, and his teams compelled to remain idle, to his damage in the sum of $450. The appellee claimed further that the appellant failed and refused to supply him with provisions and logging appliances, as provided in said contract from the 12th day of September, 1888, for a period of six weeks continuously, and that in consequence of such failure the appellee was unable to carry on his business, and was compelled to shut down his camp and suspend his business for a period of six weeks, causing him loss and damage to the amount of $2,000. He claimed further that on the 5th day of June, 1889, at the most advantageous time for logging, the appellant again refused to supply him with provisions and logging appliances as provided in the contract, and notified him it would no longer comply with the terms of its contract, and has ever since failed and refused to do so, and in consequence oí such failure the men employed by the appellee abandoned their labors in the camp, and the appellee was unable to procure supplies or subsistence, or to maintain or operate his business to the extent of his ability, and, in place of 45,000 feet of saw-logs per day, which he had been putting into the market, was only able to put in 20,000 feet per day, causing him damage to the extent of $3,000. The appellant joined issue with the appellee upon all the material allegations of the complaint except that of the making of the contract, and the allegation that in the month of June, T889, it refused to furnish the appellee with supplies and so notified him. The appellant then pleaded in justification of its refusal to furnish supplies to the appellee in June, 1889, two affirmative defenses, setting up in the first defense breach of the contract by the appellee, and in the second defense breach of a subsequent contract entered into between them for the securing of certain acceptances to be made by the appellant of certain orders by the appellee. The appellee joined issues with the appellant upon these defenses. The case was called for trial at Mt. Vernon on December 9, 1889, in the superior court of Skagit county, which had convened December 2d. The trial occupied several days, and resulted in a verdict and judgment in favor of appellee for the sum of $3,067.50.

The first ground of error claimed by appellant is, that the superior court abused its discretion in refusing to grant a continuance of the cause. Appellant’s motion for a continuance was made December 10th, while the trial was in progress, and was based upon the ground that one of its attorneys, Mr. Haller, was not present. Affidavits were filed in support of the motion showing that appellant had made every exertion to have Mr. Haller present; that a few days prior to the convening of said court he had left upon a hunting trip in company with two other gentlemen, none of whom had been definitely heard from for several days, but that it was rumored he, with the others, had been drowned, and the gravest apprehensions were entertained that said rumors were true; that Mr. Haller was the principal attorney for appellant in said matter, and the one upon whom it relied to conduct its defense. (It was subsequently learned that Mr. Haller had, in fact, lost his life as reported.) Counter-affidavits were filed by appellee to the effect that Mr. Haller had said that he would not participate in the trial in consequence of a claim made by appellee that he had counseled with him previous to the commencement of said action as to the matters then in controversy therein; also that on said December 2d appellee notified Mr. Burke, of the firm of Burke & Haller, that said court was in session and that he intended to have said cause called for trial. The first attorneys who appeared for appellant in the action were Cushing & Dunning, who filed a demurrer to the complaint September 20, 1889. Mr. Cushing was appellant’s secretary. On November 23d following, Cushing & Dunning and Burke & Haller filed an answer in the ease for appellant, a reply was filed by appellee, and the cause was at issue before the court convened. On December 5th appellant employed Hon. C. H. Hanford, Rochester, Lewis & Gilman and E. C. Million as attorneys for it in said action, and on December 6th C. E. Patterson was also employed as one of its attorneys therein. It appears that the case was called several times during the first week of the session, and was passed at appellant’s request, the last time on December 6th, upon a motion by appellant for a continuance to the first of the following week, which motion was granted, with the understanding that it would be the first civil cause called for trial. No exception was taken to this, appellant then expecting to have Mr. Haller present before said time had expired. It appears that appellant acted in entire good faith in the premises and made great exertions to learn 'where Mr, Haller was, aud also insisted upon its right to have him heard if possible as to the matters stated in appellee’s affidavits relating to his intended participation in the trial. Upon Monday of the following week (December 9th) the case was called and the parties proceeded to trial. No objection was made thereto by appellant, nor did it then apply for a further continuance. It now contends that it was understood when the trial was commenced that it would take several days within which to complete it, and that appellant expected Mr, Haller would arrive before any material progress had been made therein up to December 10th, when the rumors of his drowning became rife, and its said motion for a continuance was made.

The second ground of error alleged is in regard to the refusal of the court to permit the appellant to amend its answer, except in one instance on the condition that it pay the costs accrued, and in the other refusing it entirely. It appears that when the trial was commenced appellant asked and obtained leave to amend the answer in several minor matters. Two subsequent applications to amend were made by it. We are unable to gather from the record what the nature of the amendment was that was asked for in the first of the subsequent applications, but it appears to have been granted with the requirement that appellant should first pay the costs accrued. Appellant refused to accede to the terms, and excepted to that part of the ruling imposing them. Its last motion to amend was founded on § 109 of the code, and was made after appellee had rested his case. The amended answer itself, which was then tendered, is not to be found in the record; but it appears by the affidavits which were filed in support of the motion therefor that the purpose was to set up another defense, to the effect that appellant was prevented in the summer of 1888 from furnishing the supplies it had contracted to furnish appellee by reason of the extreme and unusual lowness of the water in the Skagit river during said time, so that the same could not be navigated, and that there was no other way of getting such supplies to appellant’s store; that its attorneys who were engaged in the trial only knew of this matter a day or two before the commencement thereof; and that they had supposed up to the time of entering on the defense that the court would permit the proof under the general denial pleaded. Appellee filed affidavits denying any cessation in the navigation of said river during said time, and claimed he could prove that the same was navigable throughout said season, but that in order for him to do so it would be necessary to have the cause continued so that he could procure the attendance or testimony of witnesses from a distance, and that it would be a great hardship to him if the amendment should be permitted. The court, in considering the motion, said if it was granted it would necessitate a continuance; that appellant had had an opportunity to amend under terms and refused to do so, and he would deny the motion; to which appellant excepted.

All of the foregoing alleged errors are in relation to matters which are addressed to the discretion of courts of original jurisdiction, and in some of the states and in the United States courts, are regarded as so peculiarly fit for the decision of such courts only that the granting or refusing thereof constitutes no ground for an appeal. Wright v. Hollingsworth, 1 Pet. 165; Henry v. Cannon, 86 N. C. 24; Westfield v. Westfield, 19 S. C. 85. Another practice obtains in many of the states, however, and which we think is the better one, of holding them appealable in so far as to correct an abuse of such discretion. But such abuse must be clearly apparent before an appellate court would be justified in reversing a judgment upon such grounds. Considering all the circumstances connected therewith in this case, we cannot say that the action of the lower court in the premises was erroneous or unreasonable.

Another ground of error complained of is as to the allowance of testimony and recovery of damages for the several trips made by appellee from his logging camp to appellant’s store for the purpose of procuring supplies, which trips, he claimed, resulted in failures. Appellant contends that damages could not be recovered for more than one of said trips. Appellee testified that the reason he did not get the supplies upon such occasions was because appellant did not have the goods on hand, but informed him the same were constantly expected, and requested him to come at stated times therefor, and that appellant was disappointed from time to time in getting the expected shipment; that upon some of said trips he got a small portion of the supplies he went after, but that he did not get what he needed, and it was claimed such trips were practically failures. Numerous special findings were made by the jury, from which it appears that but two trips were made upon which no supplies were obtained. The jury allowed damages for eight trips in the sum of $90, as follows: For two, $15 each; and for six, $10 each. No allowance was made for the others claimed to have been made. There having been testimony to show that the trips were made with a reasonable expectation of getting the supplies needed, based upon the information furnished by the appellant, it follows that the fault, if fault there was, cannot be held to have been that of the appellee, and there was no error in this respect.

A further point is urged, that the court erred in permitting appellee to introduce testimony as to his inability to procure the needed supplies elsewhere, on the ground that it was inadmissible under the complaint, it not having been alleged therein that appellee attempted to get such' supplies from other sources, and that the only allegation in relation thereto was that he could not procure and pay for the supplies elsewhere. Appellant contends the statement that appellee could not procure and pay for the supplies elsewhere cannot be treated as an allegation that he could not procure them, and this of course is true; but the complaint does allege that the appellee was prevented from carrying on his business by reason of the appellant’s failure to furnish the supplies it had contracted to furnish him. While the complaint is somewhat faulty in this particular, it seems to us the appellant was apprised by it that proof of this character was to be offered, and that it did not result in any surprise or injury. It may be fairly understood from the statement — that the appellee was thereby prevented from carrying on his business — that he attempted to procure the supplies from other parties and failed to get them, as that would be the ordinary way of proving such an allegation ; and we do not think there was any substantial error here.

Appellant’s main contention, however, is as to the damages, if any, appellee was entitled to recover, and this is the most important question in the case. The appellee claimed he should be allowed to recover as damages the value of the logs he could have put in the market during the time after September 12, 1888, when he was compelled to shut down in consequence of appellant’s failure to furnish the supplies, less the cost of getting out and handling such logs, and also the value of the logs he could have put in the market in July and August and the first part of September, 1888, and after June 5, 1889, with the full force which he could have operated during said times had the supplies been furnished as contracted, over and above what he did put in with the diminished force, less the cost of getting out and handling such excess. Appellant contends that such damages or profits were too remote, conjectural and uncertain to be estimated; that the same depended upon the continuing ability of the men and teams engaged to perform the same amount of labor; that the weather should remain the same and the market price unchanged; that such damages could be allowed, if at all, only in those cases where there was a stipulation in the contract that the other party should take the proceeds of such labor for a price certain, or where the disposition thereof was provided for by a collateral contract of which the other party had knowledge at the time of entering into the original contract, or where the thing contracted for was to be furnished for a particular purpose, and so understood; and that in the present case the measure of damages could only be the increased price and extra expense, if any, in procuring the supplies in the market; that the contract provided for nothing more,, and that nothing else could be held to have been within the contemplation of the parties. The appellee claimed he had a right to show the known situation of the parties at the time of contracting; the object they had in entering therein; that he was unable to get such supplies from any other source, and that appellant knew thereof when contracting with him. Appellant objected to such testimony upon the grounds that there was no allegation in the complaint that appellant knew appellee could not procure the supplies elsewhere; that the contract itself was the best evidence of what the parties contemplated ; and for the reason that it was immaterial. The court allowed the testimony, from which it appeared that appellant was engaged in the mercantile business on the Skagit river; that it was carrying an extensive stock of merchandise, and owned large areas of timber land bordering on said river; that a part of its business was to make money out of its timber, and from its store in furnishing supplies to persons engaged in cutting and hauling timber, and to this end appellant sought to create a market and a demand for its timber and the merchandise; that appellee was an experienced logger, and made logging his business, but that he was financially unable to undertake logging on an extensive scale, and would have to be carried in an undertaking like the present one; that this was known and contemplated by both parties in entering into the contract. The contract itself provided that the supplies should be furnished upon credit, and that appellant should have a preference lien on all the logs and timber cut to secure it for the amounts that should be due for stumpage and supplies, and it bound the appellee to purchase all of his supplies from the appellant during the continuance of the contract, and provided that such indebtedness should be paid out of the proceeds of such logs and timber by the purchasers at the time of purchase. An addendum to the contract provided that after appellee should pay all indebtedness to appellant, and wished to purchase goods for cash, appellant would sell him goods for cash as cheaply as he could purchase elsewhere, and, in case appellant refused to do so, appellee should then be at liberty to purchase in the open market. There was testimony to show that the logs and timber had a general market value, and what that value wasj also the number of feet appellee actually got out, and the proportionate additional amount he could have gotten out during the times provided for in the contract had he been furnished with the necessary supplies as agreed upon; and testimony as to the cost of getting out and hauling the logs, and the amount of profit that would have been realized thereon. One of the instructions given by the court to the jury upon the subject of damages was substantially as follows (one paragraph relating to damage claimed by reason of a forced sale of cattle, upon which no point is made, being omitted) i

“In this case, that you may arrive at a just verdict, you will consider from the evidence the situation of the parties at the time they entered into the contract as known to each other, and the object they had in entering into the same as made known one to the other, and if you find from a fair preponderance of the testimony that the defendant knew at the time it entered into the contract with the plaintiff that the plaintiff was unable to carry out the terms of his contract unless defendant would supply him the provisions and supplies needed by the plaintiff mentioned in the contract, and, so knowing, it allowed plaintiff to enter upon the land mentioned in the contract, and to construct thereon extensive logging roads and other improvements, to purchase teams, tools, etc., necessary to successfully carry on said logging business, and that plaintiff did actually construct, or cause to be constructed, extensive logging roads upon said premises, and purchased teams, tools, etc., for said purpose, and that the parties to said contract entered into said contract for the purpose of making profits, and after plaintiff had expended considerable means in preparing and constructing logging roads, and placed the premises in good condition to be successfully and profitably logged, the defendant, without any legal excuse or justification, committed a breach of the 'contract by refusing to supply plaintiff with reasonable and necessary supplies to carry on said business, and that plaintiff was prevented thereby from continuing his business, or that his business was run in a reduced state, so that he was prevented from producing the same quantity of logs that he had under the same circumstances produced immediately prior to the time the defendant refused to furnish the supplies, if you find it did refuse so to do, without any legal excuse or justification, then I instruct you that the measure of damages in this case is the value, at plaintiff’s camp in Skagit county, of that quantity of logs which represents the difference between what plaintiff would have produced had the defendant furnished all necessary supplies as alleged and claimed by the plaintiff and the amount of logs actually produced by said plaintiff, besides such special damage, if any, plaintiff sustained by reason of certain alleged trips he made for supplies. The jury will estimate the number of days, if any, which plaintiff’s camp was shut down by reason of the alleged failure of the defendant to comply with the contract during 1888, and, having so estimated this time, the jury will estimate the value at plaintiff’s camp at said time of such quantity of logs, if any, which the plaintiff would have produced at plaintiff’s landing during the time that plaint- . iff was so compelled to shut down; and if you find that plaintiff was compelled by reason of the alleged breach of contract by the defendant to operate and run his camp, during any time in 1889, upon a reduced or diminished scale from that which he would have operated and run the same had such alleged breach not occurred/the jury will then estimate the time during which the camp was operated by the plaintiff upon said reduced scale. And I charge you that, if you find by a preponderance of the evidence that the plaintiff has been damaged at this last mentioned time by reason of the alleged breach of contract on the part- of defendant, that you will arrive at the measure of damages as follows: Having found the time he was compelled to operate said camp on a diminished scale, you will then find the quantity of logs, if any, which plaintiff would have produced at his landing had said alleged default in said contract not occurred, and from this quantity so ascertained by you you will deduct the quantity of logs actually produced at said place by defendant during the time he was so compelled to operate upon said reduced scale, and the value at the plaintiff’s landing in said county of the difference between these two quantities thus ascertained will be the measure of damages which the plaintiff sustained by reason of said breach of said contract, if any he did sustain.”

In addition to its other objections as to the measure of damages, appellant argues that this instruction was erroneous upon two other grounds — first, that it, in effect, allowed appellee to recover pay twice for his time in making futile trips for supplies; in also allowing him pay for what he could have done in the way of getting out logs during said time had the supplies been furnished and the trips not have been made; second, that the jury was not instructed to deduct the cost of producing the excess which it was claimed could have been gotten out but for the fault of appellant, from the value of such excess. As appellant did not assign the first point as error in its brief, but only called attention to it in the oral argument, and as we are not entirely satisfied from what we have been able to gather from the record that the output of logs would have been necessarily diminished by the absence of the person and team engaged in making the trips, we will not disturb the verdict in the premises. The second point is disposed of by another instruction, where the court told the jury that the cost of getting out the excess should be deducted, and by the fact that the jury did deduct the cost thereof from the value of such logs, as appears by their special findings.

As to the inadmissibility of the evidence objected to under the pleadings, while the complaint did not contain a direct allegation that appellant knew the appellee was unable to procure supplies elsewhere, it did contain the following statement:

“That, at the time of purchasing said timber from the said defendant as aforesaid, plaintiff, for want of sufficient means, was unable to employ and pay a requisite number of men and to purchase the extra number of teams and tools necessary for plaintiff to have to enter upon said described premises and to make logging roads thereon so as to transport said timber to market, and to purchase a sufficient supply of goods, wares, and merchandise to enable plaintiff to carry on so extensive a logging business and remove said timber from said described premises during the limited period aforesaid; and in order to induce the said plaintiff to purchase said timber from the said defendant, and to induce the said plaintiff to remove the said timber from the said premises aforesaid within the respective periods of time aforesaid, and in consideration of the said plaintiff’s purchasing said timber and agreeing to remove the same within the time aforesaid, the said defendant then and there contracted and agreed to and with the said plaintiff to furnish plaintiff with the means with which to employ and pay men, purchase teams, tools, etc., to properly conduct and carry on said business, and to sell, furnish and deliver to said plaintiff all the provisions and logging supplies needed by said plaintiff upon credit.”

There was testimony also to show that the parties had transacted business with each other before entering into this contract, and appellant’s vice-president testified that at the time the contract was made appellant knew Cole had no money, and that it would have to back him in the enterprise, and knew he could not get along without such assistance. From all the circumstances connected with this matter, we are satisfied appellant did not sustain any injury therein.

As to the basis upon which appellee was entitled to recover damages, a long list of authorities was presented by each party, which it is difficult, if not impossible, to harmonize. The position taken by appellee and sanctioned by the superior court is sustained by a number, of cases very similar to this one. If the appellant, when it entered into this contract, knew that the appellee was unable to obtain these supplies elsewhere, and that he could not carry on the undertaking without its assistance, and knew when it ceased furnishing the same that the result would be to compel appellee to abandon the enterprise, or to seriously embarrass him in the further execution thereof, it must be held to have contemplated the direct and presumable results of its own wrongful act, and to be answerable in damages therefor. Nor do we think the damages too uncertain or conjectural to be estimated, within the trend of the better authorities. The trees were there from which the logs, spars and piles could be manufactured; and at the time of the breaches there was the benefit of past experience— the known results of previous efforts in carrying on the work — from which to form an estimate of what could have been done thereafter had the supplies been furnished. The timber itself when gotten out was a staple commodity, with a market value not subject to any sudden or great fluctuation, and this value was easily susceptible of proof. Indeed, some of the cases go to a much greater extent than it is necessary to go in this case to sustain the rule of damages adopted at the trial. Of the authorities presented upon the question of damages we cite the following as supporting this case: Shepard v. Gaslight Co., 15 Wis. 349; Booth v. Rolling Mill Co., 60 N. Y. 487; Richardson v. Chynoweth, 26 Wis. 656; Hammer v. Schoenfelder, 47 Wis. 455 (2 N. W. Rep. 1129); Crescent Mfg. Co. v. N. O. Nelson Mfg. Co., 100 Mo. 325 (13 S. W. Rep. 503); Houser v. Pearce, 13 Kan. 104; Benj. Sales, § 870; 1 Suth. Dam., pp. 75, 90, 91, 106-116.

A further error is claimed, that counsel for appellee prejudiced the jury against appellant by repeatedly applying harsh and opprobrious epithets to it in his closing argument, which abusive language it is claimed was in no wise warranted by the evidence. It seems that no objection was made thereto at the immediate time, but at the close of the argument appellant excepted to the court’s permitting said statements to be made, whereupon the court immediately said to the jury that the language was uncalled for, and should under no circumstances affect them or the case, and subsequently reiterated the same in his instructions. Appellant urges that it is the court’s duty to supervise the making of an argument, and that it should in this case of its own motion have prevented counsel from repeating the statements complained of without an objection by appellant; that it is not the correct practice for counsel to interrupt another at such a time. Appellee insists that all he did say was fully justified and called for by the testimony, notwithstanding the court’s remarks to the contrary to the jury, and, if it was not, that it was waived by a failure to object at the time. In the view we take of the matter, it is not necessary to set forth the statements or to examine the evidence to see whether the same were excusable. Some latitude must be allowed counsel in arguing to the jury. However, the court should, without an objection, prevent counsel from clearly transgressing all reasonable limits therein; yet, as here, where the statements were made under an apparent bona fide belief that they were permissible under the proof, if appellant desired to prevent a repetition or continuation thereof it should at least once have called the court’s attention thereto by an objection during the argument, otherwise it must be content with the action of the court, when the objection was made, in its doing all it could to prevent the language from having an adverse effect to appellant upon the jury. Judgment affirmed.

Anders, C. J., and Dunbar and Stiles, JJ., concur.-