Walsh v. Standart

SHAW, J.

This is an action for damages for breach of contract. A demurrer to the complaint was overruled, and after answer filed the case was tried by a jury and a verdict of five thousand dollars returned in favor of the plaintiff. This amount was reduced to four thousand dollars by order of the trial court, on motion for new trial. The defendants appeal from the judgment and from an order denying a new trial.

The contract sued on was dated April 4, 1911, the material portions thereof being as follows: The defendants agreed to cut and sell to plaintiff certain standing timber situate upon lands owned by the defendants, during the years 1911 to 1914, inclusive, the timber to be cut into logs by defendants and delivered by them to plaintiff upon the logway to the sawmill to be erected on said premises by the plaintiff, the total amount so delivered in the four years not to exceed six million feet. At the beginning of each season the plaintiff was to notify the defendants at least fifteen days prior to the time he intended to start operating the mill for that season. The agreement further provided that plaintiff “is hereby granted a mill site together with all lands necessary to be used in connection with the proper running of said mill” on the above land. The price of the lumber was fixed and other terms were stated which are not material to the questions presented. Upon certain contingencies the defendants were to purchase the mill placed on the premises by the plaintiff as above specified. The preamble to the contract states that it is made “between George R. Standart, John W. Standart, and Lowell Standart, . . . parties of the first part, and W. H. Walsh, . . . party of the second párt.” The contract is signed by all parties except Lowell Standart.

The complaint alleges that in pursuance of said contract the mill site was selected on said lands, and the plaintiff constructed the mill thereon and was ready to receive said timber from the defendants and saw the same into lumber during the month of October, 1911. That during the month of October, 1911, “the defendants delivered to said mill certain logs, most of said logs being logs cut from dead timber on said lands by

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the defendants, and said dead logs not being of growing timber standing on said lands. ’ ’ That plaintiff continued to saw said logs until the closing season of the year 1911, but that plaintiff “in said month of October, 1911, did notify defendants that said logs so delivered by defendants were not in accordance with the terms and conditions of said contract and were not all logs cut from growing” timber on said lands, but were mostly dead logs of an inferior quality. That on or about the fifteenth day of March, 1912, as provided by said contract, the plaintiff notified the defendants that plaintiff was ready to proceed with the sawing for the season of 1912, demanding that defendants deliver to said mill, in accordance with the terms of said contract, the logs cut from the standing and growing timber on said described lands, but that the defendants refused to deliver any logs whatsoever in accordance with the terms of the contract, but filled the logway with decaying and dead timber cut from decaying dead trees, that plaintiff thereupon refused to accept such logs and demanded that defendants deliver logs cut from standing and growing timber, all of which defendants refused to do. That plaintiff prior to the commencement of this action notified the defendants that because of said refusal to perform their part of the contract plaintiff had elected to rescind and cancel said contract. It is further alleged that plaintiff had performed said contract on his part up to the time of the breach thereof by the defendants, and was ready and willing and able to perform all of said contract to be performed by him, and that by reason of the "breach of contract by defendants the plaintiff was damaged in the sum claimed.