Walker v. Webber , 12 Me. 60 ( 1835 )

Weston C. J.

delivered the opinion of the Court.

The defendant and other persons, being the owners of certain timber lands, in the neighborhood of Crotched pond, were desirous of obtaining a sufficient water communication, to float logs thence to Long pond, from which there already existed facilities to forward them to the mills at Saccarappa, where they were to be sawed for the Portland market.

As an inducement to the plaintiff, to make at his own expense a canal for this purpose, they covenanted to sell to him, upon certain terms prescribed, all the pine logs, which they or either of them, may haul or cause to be hauled in, or rafted into Crotched pond. It appears that logs could be forwarded through this channel at less expense than by any other; so that the plaintiff had a just expectation of receiving all the pine logs, which might be cut for market, from the defendant’s land, and from the land of the other parties, covenanting with him. There was another route by Kezer river into the Saco, of which they were at liberty to avail themselves, whenever there were sufficient inducements to do so. But the benefit of all that were to pass by Crotched pond, was secured to the plaintiff.

To give tlie covenant any other construction, would deprive the plaintiff of the profit to which he looked, to reimburse himself the expenses of his enterprise. It was deemed hazardous and uncertain in the outset. lie might sustain great loss, or realize large profits, from his undertaking. What was the profit, for which he stipulated ? Whatever might remain of the proceeds of one half of the boards, and of the three dollars and fifty cents per thousand, which he was to receive upon the other half, after paying all the expenses. The profit resulted from the facility, created by the plaintiff. Independent of the instrument, upon which he declares, which was intended to secure the profit to himself, it would add so much to the value of the standing limber intended for that market. If the defendant was at liberty to sell his pine timber standing, or in its transit to Crotched, pond, he would put this profit into his own pocket, and the right of the plaintiff under the covenant would be defeated. There were but two ways by which the logs could reach Crotched pond,; either hauled by teams, or floated by water. Both these modes of ingress were provided for. From what quarter were those logs to come, which were expected to be rafted, or water borne, into the pond ? It does not appear that there was any other stream, running into Crotched fond, except what came from Steam’s pond, above. But this, it is urged, would not admit of the passage of logs, at the time when this contract was made, and could not, therefore, have been in the contemplation of the parties. But to this it may he replied, that if this had not been contemplated, there would remain nothing, which would require a stipulation, as to the logs, which might be rafted into Crotched pond,

If the canal, between that and Long pond, succeeded, it was doubtless intended to improve the communication with Steam’s pond. Accordingly-we find that improvement immediately followed, by which the timber put into that pond, could be water borne, through Crotched pond to market. When put into Steam’s pond, it was on its way, and must necessarily pass through Crotched pond. That the design of the contract might not be defeated, all that was rafted or floated into that pond, was made subject to its provisions. The contract embraced all that the defendant might cause to enter Crotched pond. Whatever logs were put into Steam’s pond, were necessarily to take that destination. That was the effect, which was thus caused by the act of the defendant, and therefore within the contract.

There is no reference, in the covenant declared on, to any other instrument; and we are therefore not at liberty to avail ourselves of any other, in arriving at the intentions of the parties.

It does not distinctly appear upon what principles of calculation, the jury arrived at the damages, they found in favor of the plaintiff. But it does appear, that they allowed nothing for the expense of transportation from Steam’s to Crotched pond, which was twenty-one cents per thousand. That was an expense, which did not fall upon the plaintiff, as he was under the contract to receive the logs in Crotched pond, and it was therefore properly omitted in the estimate.

If the toll, paid to the plaintiff for passing his canal, by the purchasers from the defendant of the logs in question, exceeded a just equivalent for the facility enjoyed, it came from the pocket of the purchasers. It might, however, and probably did, diminish the value of the timber, before it passed the canal, and would thus fall upon the vendor. How much the excess was, the jury have not found. It is claimed as a gain made by the plaintiff, which should be offset against so much of damage, he sustained by q breach of the contract. If the jury, in estimating the profit, which the plaintiff might have made, took into consideration the toll as one of the expenses previously to be charged, which being equitable and just, they may have done, the toll received would exactly balance the toll charged, in estimating the loss sustained by the plaintiff, who would thus receive only a fair indemnity. The defendant had no claim to a further deduction on that account. If he had broken his covenant, which the facts prove, the question for the jury was, what injury the plaintiff had thereby sustained. It does not appear, nor is it to be presumed, that they awarded him damages beyond the injury.

We are well satisfied, from the language of the instrument, and the authorities cited, that the defendant’s covenant must be regarded as several.

Judgment on the verdict.