Burtis v. Munising Co. , 126 Mich. 685 ( 1901 )

Grant, J.

(after stating the facts). It was conceded upon the trial that the conversation between Scott and Comstock Bros, created no independent liability on the part of the defendants, and that the receipt of 98 per cent, of the saw bill by plaintiff from Comstock Bros, created no estoppel upon his part, and that the sole purpose of this testimony was to aid in the interpretation of the contract. The defendant companies guaranteed to plaintiff 40,000,000 feet of timber to manufacture. They were under contract obligation to furnish it, or to cause it to be furnished. If they had failed to do so, they would have been liable in an action for breach of contract. This timber was furnished as a part of the stipulated amount, and the Munising Company, in its dealings with Comstock Bros, and with the plaintiff, clearly recognized the binding force of that contract. .The Munising Company made this concession as to the sawing price in order to accomplish its sale. It acted through its authorized agent, whose principal was evidently cognizant of the negotiations. The parties had a right, and it was the duty of the company, to contract that the timber should be sawed at plaintiff’s mill at the agreed price. It had no right to contract for a less price. Comstock Bros, saw the contract between plaintiff and defendants, understood its terms, and made their contract upon the theory that the Munising Company had the right to contract with them in regard to the sawing price, and that the company would be bound to make good the difference, should plaintiff refuse to accede to the reduction. Upon this theory the company asked plaintiff to assent to the reduction. He promptly refused to be bound thereby, and told that company that he would hold it liable for the difference. Plaintiff had no express contract with Comstock Bros. He could not have recovered against them the contract price for sawing. If plaintiff had sued Comstock Bros., upon what basis could he have recovered from them, after he had recognized the contract between them and the company, had informed the company that he should demand from it the difference, and, in the face of his protest, the company had proceeded to carry out its contract with Comstock Bros.? To that suit Comstock Bros, would evidently have replied: “We did not contract with you; we contracted with the Munising Company under its contract with you.” But, if plaintiff could have maintained a suit against Comstock Bros., it would have been on an implied contract to pay what the sawing was worth, and not the price of the contract between plaintiff and defendants. All the parties acted upon the theory that the defendants were bound to pay the contract price, and that, if either of them saw fit to reduce it, it must make up the difference. If there were any doubt about the construction of the contract, the Munising Company, by its conduct in dealing with Comstock Bros, and the plaintiff, construed it against the claim it now sets up. No question is raised as to the liability of the Lac La Belle Company for the separate acts of the Munising Company.

Judgment is affirmed.

The other Justices concurred.