Summary
On Exceptions by Defendant.
This was an action of assumpsit to recover the sum of $1,821.47 for driving 3235 cords of poplar from Ship Pond Stream to Milo boom, at 75 cents per cord. ■
Plea, the general issue.
The plaintiffs introduced in evidence a written contract signed by themselves, also a written contract signed by the defendant’s agent, of the following tenor:—■
Boston Excelsiob Company.
Manufacturers and dealers in Excelsior and Upholsterers’ Supplies.
Julian D’Este, Treas. 26 Canal Street.
Boston, Mass.
Sebee, Me., Mar. 29, ’94.
We the undersigned, do hereby agree to take the poplar cut and peeled for the Boston Excelsior by Hoxie Bros, now on landing at Ship Pond Stream and drive and deliver the same in their boom at their dam in Milo Village, Me., in the spring of 1894, for 75 cts. per cord.
We do further agree to deliver all poplar delivered in booms to the Boston Excelsior Co. from other parties on Sebee Lake to the Boston Excelsior Co.' at their boom in Milo Village, Me. in the spring of 1894, for 25 cts. per cord.
We further agree to deliver and yard on the landing at Ship Pond Stream (what poplar was left in the woods peeled by Hoxie Bros.) during the summer of 1894, for $1.00 per cord.
We also agree to cut and peel 2,000 (two thousand) cords of poplar, if there be that amount, on land known as the. Quarry Tract owned by S. & J. Adams of Bangor, Me., and drive and deliver the same to the dam of the Boston Excelsior Co. in Milo Village, Maine, in the spring of 1895—cutting, peeling and delivering the same at landing on Ship Pond Stream, for $1.50 per cord, and 75 cents per cord for driving the same to the dam of the Boston Excelsior in Milo Village, Maine.
A. H. Gould.
J. C. Dean.
Boston Excelsiob Company.
Manufacturers and dealers in Excelsior and Upholsterers’ Supplies.
Julian D’Este, Treas. 20 Canal Street.
Boston, Mass., Mar. 29, ’94.
We, the undersigned, agree to pay Gould & Dean the sum of $500.00 (five hundred dollars) when the poplar now landed in Ship Pond Stream is driven out into Sebee Lake (to pay men with) and pay them the balance when the rest of the poplar in is in the Milo boom. We further agree to advance money to pay men for peeling and yarding poplar on Ship Pond Stream, to be cut as agreed upon land known as tbe Slate Quarry Tract owned by S. & J. Adams. Also to advance money to pay men for yarding upon Ship Pond Stream sucb poplar as was left in tbe woods by Hoxie Bros, in their operation, when same is yarded on stream.
Boston Excelsior Co.
By Julian d’Este, Treas.
Tbe evidence tended to sbow that both contracts were signed and delivered at tbe same time. The plaintiffs introduced evidence tending to sbow that a few days prior to tbe making and signing of the contracts tbe plaintiffs met Julian d’Este, treasurer and agent of tbe defendant corporation at Milo; that the trade so made at said Milo is embodied in the contract first above. Tbe plaintiffs offered evidence of certain conversations between themselves and said Julian d’Este, made at the time that tbe trade was made, that was embodied in tbe contract first above, tending to sbow that there was an agreement made as to bow and by whom tbe poplar was to be scaled. Tbe plaintiffs claimed that sucb talk as to tbe scaler constituted an independent agreement. Tbe defendant introduced evidence tending to sbow that tbe contract first above embraced tbe whole contract made at Milo between tbe parties.
Upon this branch of the case tbe presiding justice gave the jury the following among other instructions:—
“Tbe plaintiffs claim to recover a balance of $1821.47 for services alleged to have been performed under a written contract in driving certain logs on Sebee waters into Milo for tbe benefit of the defendant corporation. They claim that they drove 1025 cords of tbe Hoxie lumber and 2210 cords of tbe new lumber; while the defendant claims that there were 848 cords of the Hoxie lumber and 1745 cords of tbe new lumber,—making a difference of 177 cords of the Hoxie lumber and 465 cords of tbe new lumber, a difference of considerable importance to tbe parties; and, as I have observed' before, whether tbe amount be large or small, of course, tbe parties are entitled to your best judgment on tbe facts which they present to you.....
“If a written instrument is silent in relation to any material point it is competent for them [the parties] to show that they have made outside of that an independent agreement in relation to some matter which does not contradict, vary or modify the written contract.
“ The plaintiffs seek to avail themselves of this familiar principle of law.
“ A written contract has been introduced signed by the parties specifying what was to be done by the plaintiffs with reference to the Hoxie lumber and the new lumber in respect to the cutting, peeling, hauling, landing and finally driving into Milo. It is not in controversy that this was the understanding and that it was done without fraud or mistake on either side, and contracts have been signed.
“But the plaintiffs say that those contracts were prepared, or signed at all events, by the defendant company in Boston, and that there was an independent and important understanding and stipulation between them which was not embodied in this written instrument, and that is with reference to the manner in which and the person by whom the number of cords should be ascertained; in other words, the agreement upon the scaler. And the plaintiffs say that there was such an independent agreement: that it was well and fairly and fully understood between them and the defendant company that not, indeed, the name of the scaler but that the person that should be designated and furnished by the Adamses of Bangor should be the scaler. The plaintiffs both, as I remember, testify that when the inquiry was raised as to who should be the scaler or how the scale should be made, the agent of the defendant corporation, Mr. d’Este, replied in substance that there would be no trouble about the scale, that Adams would send up and furnish the scaler, and the plaintiffs say that that proposition was acceded to by the plaintiffs, if not expressly in words at that time by saying, “That will be satisfactory to us,” or “We accept your proposition, that the scaler furnished by Adams shall be the scaler agreed upon,” nevertheless that you ought to infer, and must infer as fair-minded men that by their conduct they did accept the proposition and did act upon it; and when Mr. Adams, or the Adamses, were notified, they sent up the scaler and he entered upon the discharge of his duties at the several landings where the poplar was being hauled.
“Now this is the position of the plaintiffs. They say in other words that there was a fair agreement upon the person who should scale the lumber, that that person was furnished, as understood and agreed upon, by Adams; that he was in fact, if that inquiry should be opened, a competent person, that he entered upon his duties and discharged them fairly and honestly in the exercise of his best judgment, and therefore they claim that the results of his scale are conclusive upon the parties.
“Well, gentlemen, I mayas well say here that there is no dispute between counsel in relation to the law upon that branch of the case. It is familiar and well settled that the scale of a scaler is conclusive upon the parties, who have agreed upon him, in the absence of fraud or manifest mistake.”
After verdict for the plaintiffs, the defendant was allowed exceptions to the admission of the evidence introduced by the plaintiffs showing how and by whom the poplar was to be scaled.
No part of the writing covered this collateral stipulation shown by the plaintiffs, consequently evidence of it was admissible, and it was for the jury to determine whether it was proved or not. Earwell v. Tillson, 76 Maine, 227, 239; 2 Pars. Cont. pp. 553 and cases, 555 and note; BavenpoH v. Mason, 15 Mass. 85, and cases; Neal v. Flint, 88 Maine, 72.
In the contract under consideration the language is certain, the contract is complete. The fact that the contract contains nothing in regard to how the poplar is to be scaled or measured does not make such parol evidence admissible as is established by the rule laid down in 1 Greenl. Ev. § 275; Thompson v. Libby, 34 Minn. 377.
Counsel also cited:—Warren v. Wheeler, 8 Met. 97; Boyle v. ■ Bixon, 12 Allen, 578 ; West v. Kelley, 19 Ala. 353, (54 Am. Dec. 192); Black v. Batchelder, 120 Mass. 171.
By the contract the poplar was to be driven to Milo, where in absence of agreement of the parties it was to be surveyed by the sworn surveyor of Milo. R. S., c. 41, §§ 1, 2, 14, 15, 25.
Counsel also cited:— Chase v. Jewett, 37 Maine, 351; Haynes v. Hayward, 41 Maine, 488; Coombs v. Charter Oak Co., 65 Maine, 384; Durkin v. Cobleigh, 156 Mass. 108; Fawkner v. Smith Wall Paper Co., 88 Iowa, 169, (45 Am. St. Rep. 230); Russell v. Barry, 115 Mass. 300; Frost v. Blanchard, 97 Mass. 156; jKnowlton v. Keenan, 146 Mass. 86; Boardman v. Spooner, 13 Allen, 361; Adair v. Adair, 5 Mich. 204, (71 Am. Dec. 779); Cream City Class Co. v. Friedlander, 84 Wis. 53, (36 Am. St. Rep. 895); Harrison v. McCormick, 89 Cal. 327, (23 Am. St. Rep. 469); Barry v. Ranson, 12 N. Y. 462; Cobb v. Wallace, 5 Coldwell, 539, (98 Am. Dec. 436.)
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
