Summary
In Cavanaugh v. Barnard, 83 N.H. 370 (142 A. 700), it appears that plaintiff contracted to operate a certain lot for defendant from stump to stick for $10 per thousand feet, mill measure.
Summary of this case from S.E. Portland Lbr. Co. v. CoreyOpinion
Decided June 28, 1928.
Whether the statement of a party is an admission of the full amount of the claim against him or is merely a basis for a compromise is a question of fact upon which all the circumstances attending the making of such statement have relevance.
A difference between two scales of the same lumber of somewhat over thirty-eight per cent is too substantial to have resulted from a mere mistake and is evidence of some fraud in connection with one scale or the other.
In such case, the exclusion of all testimony of various conversations between the parties relating to a settlement is error, since it cannot be said as a matter of law that from such evidence in detail some legitimate inference tending to establish fraud might not have been drawn. And if such evidence was excluded because it contained no element of an admission, the ruling should have so stated, to enable the offerant to make the general terms of his offer more specific.
In such case, mere acceptance of the lumber before the second scale disclosing the shortage has been made is not a waiver of the right to contest the original scale.
Before the trial justice takes a case from the jury upon an offer of evidence or upon an opening statement he should ascertain definitely if the offer or statement embraces the entire proof.
ASSUMPSIT, to recover a balance alleged to be due the plaintiffs for logging a certain timber tract belonging to the defendant and known as the Haselton lot. The defendant filed a plea in recoupment for $4,077.30, claiming an inaccurate survey of lumber which the plaintiff had previously cut for him on another tract known as the Warren lot. This sum was based on the alleged difference between the plaintiff's mill survey and the final survey of the defendant's consignees. Trial by jury.
The parties agreed to the following facts: The plaintiff contracted to operate the Warren lot for the defendant, from stump to stick, for $10 per thousand feet, mill measure. As the work progressed, the defendant measured approximately 175,000 feet and was satisfied that the plaintiff was measuring the cut lumber correctly. He visited the lot at least once a week and paid the plaintiff in full each week according to the mill survey, so that when the work was finished, the plaintiff had been paid in full and the defendant had accepted the lumber. The plaintiff let the contract for chopping, logging, and sticking the lumber to an independent contractor, who was paid by the plaintiff on the basis of the mill measure, and the plaintiff employed the foreman, millmen, and markers by the day. The total amount of lumber sawed, according to the mill measure, was 1,052,862 feet.
Under his plea in recoupment the defendant offered to prove that when he sold the lumber the survey of his several consignees at destination showed a shortage below the mill survey of 407,730 feet, and that the teamsters who hauled and shipped the lumber for him accepted payment therefor upon the basis of the consignees' survey at destination; that when the alleged shortage first became apparent he had shipped all but about 7,000 feet of the lumber, and that he immediately notified the plaintiff of this fact, stopped payments on the lumber which the plaintiff was then cutting from the Haselton lot, and presented the record of the shipments already made; that soon afterward the parties conferred at the plaintiff's office and the plaintiff then instructed the defendant "to go ahead and ship the balance of the lumber" and when all was shipped to bring in "the full shipment account"; that after all surveys of shipments had been returned, the defendant took the full account to the plaintiff, who, after "due consideration," stated: "We will try and get together and settle up"; that he called many times at the plaintiff's office and that negotiations were still pending when the present action was instituted.
The defendant did not claim that either Cavanaugh or McCaffrey was personally guilty of fraud, but contended that the discrepancy between the mill scale and the consignees' scale, taken in conjunction with the acts of the agents who were directly under the plaintiff's supervision, constituted sufficient evidence from which the jury could find that the mill survey, as returned each week by the plaintiff's marker, was fraudulent.
All the proffered evidence was excluded, subject to exception, with a ruling that, in the absence of fraud, the defendant was bound to pay according to the mill survey. There was a further ruling to the effect that the defendant, having accepted the lumber, had waived all right to question the mill survey and was estopped so to do. The case was then withdrawn from the jury and the questions of law raised by the exceptions transferred by Young, J.
Thorp Branch (Mr. Branch orally), for the plaintiff.
Charles D. Barnard (by brief and orally), for the defendant.
Assuming that the court impliedly found that the plaintiff's direction to ship the lumber and submit to it (the plaintiff) the full account, coupled with the subsequent examination of the account, and the statement: "We will try and get together and settle up," constituted an attempt to compromise rather than an admission of liability (Masterson v. Railway, ante, 190, 193), it is difficult to understand how that finding could fairly be made without the detailed testimony of the parties. And according to the record no oral testimony whatever was admitted.
In Bartlett v. Hoyt, 33 N.H. 151, it was held to be a question of fact upon all the evidence whether the answer to a witness's inquiry of the defendant "if he and the plaintiff were likely to settle," was an admission. The construction to be put upon statements evincing a willingness to adjust disputed claims must "often be materially modified by the nature of the case and the surrounding circumstances." Field v. Tenney, 47 N.H. 513, 521. It is said by Parsons, J., in Smith v. Morrill, 71 N.H. 409, 411: "The controversy appears to have been, whether the statement was an admission of the full amount of the claim, or a basis for a compromise. Whether it was intended as the one thing or the other, was a question of fact upon which the attendant circumstances would be evidence."
It is true that the defendant's offer to prove the statement in question was accompanied by an offer in general terms to prove the conditions under which it was made, yet that offer could not of necessity include all the incidental facts which were likely to be revealed by an examination of the witnesses. That such facts may be many is indicated by the finding of the court that if a new trial is ordered the issues will be complicated. Furthermore, in determining a question of this kind the demeanor of parties and witnesses on the stand is often of appreciable importance. Either the evidence should have been received by the court in passing upon the preliminary question of fact or submitted to the jury with proper instructions. Davidson v. Insurance Co., 80 N.H. 552, 556, 557; Jenness v. Jones, 68 N.H. 475; Colburn v. Groton, 66 N.H. 151, 158.
Fraud will not of course be implied merely from doubtful circumstances. Jones v. Emery, 40 N.H. 348, 350. Consequently, it cannot be established by showing a slight discrepancy between two scales of lumber and nothing more. Bechard v. Amey, 82 N.H. 462, 467. But here the defendant has offered to prove that the discrepancy was very great; that the plaintiff had an opportunity to examine the defendant's figures and after such examination expressed the desire "to get together and settle up," and that negotiations to that end were in progress when suit was brought.
Before a trial judge takes a case from the jury on an opening statement or excludes an offer of proof he ought to ascertain definitely if the statement or offer embraces the entire proof. This was done in Hughes v. Railroad, 71 N.H. 279. The difference between the scales was too substantial to have resulted from a mere mistake. It was evidence of some fraud in connection with one scale or the other. All the proffered evidence was therefore competent. The presiding justice did not rule that the evidence was insufficient to prove fraud but simply excluded it. If he intended to rule that the evidence was insufficient because it contained no element of an admission, he should have so stated in order that the defendant might have a chance to make the general terms of his offer more specific. Manifestly, the offer to show many calls at the plaintiff's office implied an offer to show various conversations relating to settlement, and it cannot be said as a matter of law that if this evidence in all its details had been introduced, some legitimate inference favorable to the defendant might not have been drawn. Nor when such evidence was offered could the court properly rule that the defendant had waived his right to contest the original scale.
The plaintiff excepted to the order of the presiding justice that if there should be a new trial the case would be heard by the court or a referee, since the issues were too complicated to be determined by a jury. It is unnecessary to decide whether in view of the decision in Daley v. Kennett, 75 N.H. 536, the court had authority to make this order, for the exception has been waived.
New trial.
SNOW, J., was absent: BRANCH, J., did not sit: the others concurred.