Martindale v. Lobdell-Emery Manufacturing Co.

Brooke, C. J.

(after stating the facts). The first item upon which the jury was permitted to pass was the sum of $750, the price agreed upon between Blanchard and plaintiff to be paid for the building of the 1,000 feet of side track, and the decking of the logs caused by the failure of the railroad company to furnish sufficient cars to permit plaintiff to conduct the operation after January 8th as a “hot-logging” proposition, which it is clear was the method of handling the job contemplated by the parties at the time the contract was made. As pointed out in the statement of facts, Blanchard, defendant’s woods superintendent, testified to the fact of making the agreement for the extra compensation exactly in accordance with the claim of plaintiff. On behalf of defendant it *486 is urged that Blanchard was without authority, under the evidence, to modify the contract imposing an additional liability upon it. The contract provides:

“The second party further agrees that the work shall be done in a good workmanlike manner and that the instructions as to the manner in which this work shall be done shall be lived up to and carried out by thq second party in all its details.”

There can be no doubt under this section of the contract that the defendant, through its woods superintendent Blanchard, the contingency of the shortage of cars having arisen, ordered plaintiff to continue the operation and deck the logs at the siding. It should be borne in mind that the operation in question was being carried on in timber which had been injured by fire, and that it was necessary to have it cut and marketed speedily in order to prevent serious depreciation and loss. The authority of Blanchard to meet the exigency and to order a change in the method of the operation being unquestioned, it seems to us that plaintiff would have a clear right to recover the value of the extra services performed, under the common counts in his declaration, and under the uncontradicted testimony as to the value of such services contained in the record. Upon this question the court, charged in part:

“And I charge you further, gentlemen, that if what Mr. Martindale claims for that service, that is to say, one-half dollar a thousand for 1,500,000 feet — if these services were fairly and reasonably worth that sum, he would be entitled to recover this sum of $750, which is his first claim in this case. Otherwise not.

“If you do not find that Mr. Blanchard had this authority, which I have spoken of, to oversee, supervise, manage, and control the outside operations in the woods of this concern, then Mr. Martindale hasn’t a look-in on that claim. But if he had, then I charge you equally as the law that he had a right to make this *487 arrangement, which he says he made, to have Mr. Martindale put this excess of logs into these skidways and thereafter load them out. And if he promised that he should be paid for those services, then Mr. Martindale would be entitled to recover what those services — that is, the extra cost in loading out the skidded logs — what it was fairly and reasonably worth. He claims $750. It is for you to say whether he is entitled to that sum.”

The first paragraph quoted above would seem to permit a recovery on the quantum meruit. The second predicates the plaintiff’s right to recover upon the authority of Mr. Blanchard to fix the value of the extra services and bind his principal to pay the agreed sum. As indicated, we believe the first paragraph above quoted states the law applicable to the case, but we are further of the opinion that no error was committed by the court in submitting the question of Blanchard’s agency to the jury under the testimony contained in the record. From Blanchard’s testimony it fairly appears, we think, that he had, on various occasions during the period of his service with defendant, assumed to direct the performance of similar contracts, and that his principal, the defendant, had recognized his authority so to do. The testimony of plaintiff and Blanchard as to the method of doing business and as to the exercise of authority by Blanchard in this as well as in other similar contracts was, in our opinion, quite sufficient to carry to the jury the question as to whether Blanchard had authority to agree to pay the extra compensation. Marx v. King, 162 Mich. 258 ( 127 N. W. 841 ).

With reference to the second item of plaintiff’s claim, one-half the scaler’s wages, it seems to be defendant’s contention that the oral agreement to divide the expense testified to by Blanchard and plaintiff was made prior to the execution of the written contract, which provides that:

*488 “The official scale of the Michigan Central Railroad Company shall be accepted as final.”

Plaintiff himself clearly testified that the arrangement was made subsequent to the execution of the contract, and we think a fair consideration of the entire record leads to the conclusion that the weight of the testimony is to that effect. Mr. Lobdell himself flatly denied the making of any such arrangement at any time.

As to the third item of plaintiff’s damages arising from the closing down of the so-called Montmorency operation, defendant claims that it was acting within its legal rights in so doing in order to insure the delivery of ah the logs then cut to the piling grounds designated in the contract before the snow should vanish in the spring. Counsel for defendant say:

“The defendant’s position, for the reasons indicated above, and to insure the delivery of the logs already decked, was- simply that Martindale should stop cutting any more timber until he had hauled this 1,500,-000 feet which was decked, and that he should use his dray haul force in hastening the delivery of these sleigh haul logs.”

Upon this point the learned trial judge instructed the jury as follows:

“If you find from the evidence, gentlemen, in this case, by a fair weight and preponderance, that if Grant Martindale had not been stopped by the defendant, that he could have hauled out his sleigh haul logs, and also could have cut and, put in this quantity of dead hemlock which he was using for his dray haul; that if he had not been stopped he could have completed the job on both kinds of timber — then I charge you that he would be entitled to such damages as I shall instruct you in a few moments. But, on the other hand, gentlemen, and from the different standpoint, I charge you expressly that if an honest, fair-minded lumberman, of ordinary intelligence, experience, and prudence, would not have believed that the plaintiff, *489 under the circumstances then existing, could put his sleigh haul logs then on skids to the river before April 1, 1913, and"also put in the remaining dray haul timber, and that the defendant did not so believe, then the •defendant had the right to instruct the plaintiff to stop cutting dray haul logs and use his force to get all the logs ready cut to the river before cutting any more logs of either kind.

“Now, gentlemen, if under these instructions you find that the plaintiff would be entitled to recover damages for being prevented from continuing his operation in cutting and hauling the dray haul logs, I must tell you what you might award him. It is the claim of the plaintiff, and he has given evidence tending to show that state of facts, that before this time he had constructed all necessary or useful roads for the purpose of taking out the remaining standing, dead hemlock timber, standing and lying dead hemlock timber on section 28; that there was a quantity of that of about 600,000 feet; that he had built all necessary roads and landings; and that he could have done that work for $2 per thousand feet. The contract price was $4 a thousand, and he claims to recover, as the measure of damage, $2 a thousand, or the difference between the cost of putting in the logs and the contract price; and I charge you, gentlemen of the jury, that if you believe he is entitled to recover under these instructions which I have just stated to you and repeated, that that would be the measure of his damage. Not $2 necessarily — I do not say $2. It is for you to say, first, how much timber there was there that he could have put in before the 1st of April. Not just 600,000 because he says so, unless you are convinced from the evidence that that is true — but he could recover the difference between the cost of putting in such timber as he could and would have put in and the contract price. That would be the measure of damages.”

This instruction we think correctly states the law applicable to the facts. Atkinson v. Morse, 63 Mich. 276 ( 29 N. W. 711 ).

The last item involves a pure question of fact, and *490 was submitted to the jury under appropriate instructions.

The judgment is affirmed.

Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. The late Justice McAlvay took no part in this decision.