Gill v. Johnstown Lumber Co.

25 A. 120 (1892)

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Nature of the Case

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Facts

Gill (P) contracted with Johnstown Lumber Co. (D) to drive logs along certain points to D's boom at Johnstown and to drive crossties at certain locations. The amount paid to P was apportioned among the various jobs ($1 per thousand feet of oak, $.75 per thousand feet of other logs, and $.03 for each cross tie but more if driven to another point on the river). Ten days after the contract was entered into, a large earthen dam above Johnstown broke. The flood carried a large number of logs past D's boom. Part of the lumber specified in the contract had been driven by P according to the contract, part he had attempted to drive but, after doing some work, stopped for want of water; some of this latter lumber was carried by the flood of May 31, 1889, into and through D's boom and much of it was lost, while some of the lumber remained and never reached D's boom. There was a conflict of evidence as to whether after the flood P had offered to perform the contract and had not been allowed by D to do so. D refused to pay. P sued, claiming that the contract was severable and that he was entitled to compensation for the logs and ties that were delivered. Judgment was given for D and P appealed.