Irish v. Pauley

SEARLS, C. Action upon a verbal contract to cut and deliver sawlogs at the sawmill of defendant, on the East Fork of the North Fork of the North Yuba river, county of Sierra. The cause was tried by the court without the intervention of a jury. Written findings were filed, upon which judgment was entered in favor of plaintiff for $560 and costs. Defendant appeals from the judgment and from an order denying his motion for a new trial.

We have found but little aid from the statement of facts by the counsel for the respective parties in their briefs. The statement of each is predicated upon the evidence in his own behalf, and seems to ignore that of his adversary. As there was a substantial conflict in the evidence upon nearly all the issues in the case, and as the court below found in favor of the plaintiff, counsel for respondent is justified in assuming the facts to be in line with the testimony of his own witnesses.

The first point made for reversal is that “the decision is against law, as the judgment is based upon contradictory [652]findings.” It is urged under this head that the third finding contradicts the sixth, and such others as find that plaintiff complied with all the conditions of his contract. To the better understanding of the finding assailed, and of some others to which similar objections are made, we give a synopsis of such of the findings as shadow forth an outline of the case. (1) In August, 1893, plaintiff and defendant entered into a verbal contract by which plaintiff agreed to cut and deliver at defendant’s sawmill, on the East Pork of the North Pork of the North Yuba river, Sierra county, sawlogs containing from one hundred thousand to one hundred and fifty thousand feet of lumber; to be paid therefor, on delivery, eight dollars per one thousand feet. (2) The logs were to be cut into special lengths, of twelve, fourteen, sixteen, eighteen and twenty feet, and at such place that they could be floated down the East Pork to defendant’s mill. They were to be floated in the spring of the year by water from the melted snow; and, if practicable, were to be floated in the spring of 1894, but, if not practicable, then in the spring of 1895. (3) In the spring of 1894 the plaintiff and defendant measured and counted the logs in the forest where cut, and found there were four hundred and seventeen logs, containing one hundred and forty thousand feet of lumber. Such measurement was not intended as a modification or change of the contract, under which they were to be delivered at the dam or boom of defendant. (4) In the spring of 1894 plaintiff made an effort to float and deliver the logs, but was unable to do so by reason of a snowslide which blocked the river, and which, after a reasonable effort, by blasting, etc., he was unable to remove. (5) In the spring of 1895 plaintiff delivered to the defendant, at his mill, one hundred thousand feet of lumber, in three hundred logs, and there then became due him $800. (6) Plaintiff complied with all the terms of his contract, and defendant has paid nothing on account thereof except the sum of $140. (8) The logs were, under the contract, fashioned according to the specifications furnished by defendant, and would not have been salable in the general market. (9) Defendant accepted the one hundred thousand feet of lumber. There are five more findings of fact, to which we will refer as occasion requires. We fail to see any conflict whatever between the third and sixth findings. The third is to the effect that in