Kettle River Co. v. Hase
Kettle River Co. v. Hase
Opinion of the Court
Defendants’ contention in this case is that the judgment on the two causes of action in the civil court is without the support of competent proof as to the quantity of either pine paving blocks or of the sandstone blocks delivered on board cars at the respective plants of plaintiff.
Other than the testimony of one of the defendants as an adverse witness, the plaintiff’s evidence rested entirely upon depositions taken on its behalf of certain officers and employees of its general office and its quarry in Minnesota, taken there, and officers and employees connected with its Illinois plant, taken at St. Louis. The direct examination of such witnesses was conducted by local counsel other than those here. No appearance was made by defendants at the taking of the depositions in Minnesota. They did appear and cross-examine at St. Louis.
As to the pine paving blocks,' the testimony was quite explicit as to the manner of doing the work and computing the quantity in the various shipments. Records were kept by various employees as to the size of the timbers that were sawed up into blocks and of the number of blocks that went into the respectively numbered cages or containers that were used to hold such blocks when they were placed in the required creosote mixture; that the whole work was done under the inspection of a representative of the city of Milwaukee, with whom the defendants were under contract to do the paving with these blocks. The superintendent or auditor of the plant testified that accurate records were kept and checked over from time to time by him and that he personally looked after such supervision and checking, and he produced the records kept in that manner showing the identifying number of each such cage or container and the number of blocks alleged to be contained therein. In response to questions on cross-examination. he stated that the figures in such records which were fhe basis of the bills rendered and judgment, although they were not in his hand
With considerable reluctance we are constrained to hold that there was under the testimony as to this cause of action a sufficient prima facie showing of the amount claimed by plaintiff and sufficient to support the conclusion arrived at by the two courts below.
As to the sandstone blocks, statements were rendered from the local office at the quarry to the head office at Minneapolis as to the number of blocks alleged to be loaded into each of the respective cars, about twenty-four in number, used in this shipment. From such reports the book-' keeper at Minneapolis made up the statements for each shipment, taking the total reported number of, blocks in each car and dividing by twenty-three, it being contended, and there is testimony by one of the defendants and one of their witnesses to the same effect, that twenty-three is the standard number of such paving blocks required to cover one square yard of street surface. Upon such computation the amount due at the agreed price was computed, and plaintiff paid on such statements from time to time during the progress of such shipment. Bills of lading were also sent of the shipments, containing the weights on each carload both of the pine blocks and the sandstone, which respective weights agreed substantially with those reported to the defendants by the railroad company upon the arrival of the cars at Milwaukee. But no witness testified with knowledge as to the number of blocks actually loaded in each such car, nor that they were of the average or standard size, or that the weights of such shipments were such that they would result in a specified number of square yards of either kind of material.
Defendants contended that according to the custom in the city of Milwaukee in buying such material and doing such work, such material was to be'paid for upon the basis of the amount of the number of square yards of surface laid
There was therefore no competent evidence on behalf of plaintiff in regard to the sandstone blocks to warrant the conclusion arrived at by the courts below that the quantity actually delivered on the cars in Minnesota was the amount for which the plaintiff rendered its statements. There is other testimony, however, in the record that will support the finding of the trial court to all of the amount claimed by plaintiff except 123.70 square yards of the sandstone.
The city engineer testified that there were laid on the street upon which the standstone blocks were to be used 3,957.29 square yards. Defendant Hase testified that in addition to the work on the street he used these sandstone blocks for paving three private driveways. He testified that the quantity used on these was forty-three yards and there is other testimony to support such estimate, but by a letter of June 13th, just before the final shipment under this contract, he reported to plaintiff that he had three private driveways in connection with this street which will take 100 yards.
Two extra carloads were sent by plaintiff pursuant to order of defendants at just about the time of the completion of the work. They were identified by car number by defendants, and, as billed to the defendants by plaintiff, appear to have had 174 and 166, respectively, or a total of 340 square yards. Out of these two cars defendant Hase testifies that he used about one quarter of one car, or, as he
Defendants made a charge against the plaintiff for $28 on account of the hauling of the balance of the contents of these two cars to such other yard, and testified that such charge was on the basis of their necessarily paying for ^uch hauling at the rate of eight cents per square yard. If this be correct, and the trial court might properly assume it was as against the defendants, it meant the hauling of 350 square yards. There might therefore be considered from defendants’ testimony the following three items as having been actually received by them on this entire shipment, namely.
Sandstone blocks laid in street. 3,957.29
Sandstone blocks three private driveways. 100
Blocks hauled to other yard. 350
4,407.29
This is 123.71 square yards less than the amount found by the court, and at the contract price of $1.75 amounted to $216.49, and is the amount by which the judgment in the second cause of action must be reduced.
This would reduce the amount of principal and interest on the second cause of action as of the day of the judgment in the civil court from $635.97 to $372.91, and it should be so modified.
We find no sufficient ground in the record to change the ruling of the trial court in disallowing the item of $28 for hauling sandstone blocks as claimed by defendants.
By the,Court. — The judgment below to be modified in accordance with this opinion, and as so modified affirmed. Appellants to have costs in the circuit court and here.
Reference
- Full Case Name
- Kettle River Company v. Hase and another
- Status
- Published