
    ESCANABA BOOM CO. v. TWO RIVERS MANUFACTURING CO.
    1. Settlement — Construction—Recoupment.
    A written adjustment of accounts between a lumber company and a boom company, which leaves open, as “the sole question” for future determination, whether any price for the. services of the boom company over and above the rate at which payment is made by the lumber company, up to the rate claimed by the boom company, is a “reasonable” price, the lumber company admitting its liability if the reasonableness of the demand shall be determined, precludes the latter-company from afterwards asserting a claim of recoupment for damages occasioned by delay in the performance of the work.
    2. Raeting Charges — Reasonableness.
    The fact that delivery of logs by a boom company was delayed until the fall storms had rendered transportation dangerous has no bearing upon the reasonableness of its charges, since the cost of its services coúld be no less in such season, and the reasonableness of a charge for labor, where no claim is made that it was not well done, depends simply upon the cost of the work and a reasonable profit.
    
      Error to Delta; Stone, J.
    Submitted October 19, 1898.
    Decided November 1, 1898.
    
      Assumpsit by tbe Escanaba Boom Company against tbe Two Rivers Manufacturing Company for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff is a corporation organized under 1 How. Stat. cbap. 114, and doing business on the Escanaba river. Defendant is a corporation engaged in lumbering on the same stream, from 1892 to 1896, inclusive. Plaintiff fixed a uniform price of 35 cents per thousand feet for booming, assorting, rafting, and delivery of logs. Defendant insisted that 20 cents was a reasonable charge, and up to 1896 had paid only that amount, leaving the price unsettled and their accounts undetermined. On May 13, 1896, the parties entered into an agreement, reciting their differences and the confusion in their accounts on account of such differences, and adjusting them on the basis of 20 cents per thousand, and defendant paying upon that basis. The agreement also stated the amount due each year on the basis of 35 cents, and provided that:
    “The adjustment of said unpaid 15 cents per thousand feet is left for future settlement between the parties, the sole question between the parties, and to be determined, being whether or not any charge above said 20 cents per thousand feet for the work above specified is a reasonable price; and should it be finally determined, either between the parties, or by suit brought upon this contract by the party of the first part before any court of competent jurisdiction, or by arbitration, as shall hereafter be agreed upon between the parties, that any charge above 20 cents per thousand is a reasonable price, then the party of the second part agrees, upon demand, to pay said party of the first part such excess over and above said 20 cents per thousand, up to the amount of 35 cents per thousand feet.
    “It is understood that failure of the party of the first part to render accounts for said unpaid 15 cents per thousand feet, and the giving of receipts in settlement of accounts in which the price of said work as is hereinbefore set forth is reckoned and allowed at the rate of 20 cents per thousand feet, shall not be considered as a waiver of the right of the party of the first part to demand and collect the excess over and above said 20 cents per thousand feet, up to the full amount of 35 cents per thousand feet, as claimed by the party of the first part, and to sue for •the same upon the terms of this contract. ”
    On November 28, 1896, another agreement was made, on account of an omission of the account for 1892. December 17, 1896, another agreement of settlement was made, reciting the first contract and being subject to it.
    This suit was instituted in August, 1897, to recover the 15 cents per thousand. Defendant, with its plea of the general issue, gave notice of recoupment, on the ground that plaintiff should have delivered the logs before September 1st each year, because of the danger in towing logs over Lake Michigan after that time on account of rough weather. Defendant towed its logs in rafts to its mill at Two Rivers, Wis. Defendant claimed to have suffered damages on this account. The circuit court refused to admit any evidence of recoupment.
    
      George Gallup, for appellant.
    
      F. I). Mead (F. C. Flannigan, of counsel), for appellee.
   Grant, C. J.

(after stating the facts). We think the ruling of the circuit judge was correct. The agreement settled all the differences between the parties except the price of the work, and left that as “the sole question” between them. The time for defendant to speak of any such claim was when the contract was made. If defendant desired to have its logs delivered earlier, it should have notified plaintiff.

It is suggested that testimony upon the subject of the recoupment was competent in determining the reasonableness of the charge. The cost of rafting, driving, and booming certainly could have been no less after September 1st than before. The reasonableness of the charge depended upon the cost of the work and a reasonable profit. No claim is made that the work was not well done, but only that it was not done within the time it ought to have been done.

Judgment affirmed.

Montgomery, Hooker, and Moore, JJ., concurred. Long, J., did not sit.  