text:
    The Western Electric Company v. George A. Hart.

      Bills and notes — Fraud— Waiver — Rescission.
    1. 'With full knowledge of the falsity of certain representations made by the agent of an electric company as an inducement to the organization of an electric light and power company, the latter company entered into a contract with the electric company for the enlargement of its plant and a change in its system of lighting, and its president, with full knowledge of the facts, guaranteed the notes of his company given in payment for the materials furnished under said contract. In a suit upon said guaranty the president sought to show said representations as a defense. And it is held that the testimony was properly excluded.
    2. The defendant claimed that plaintiff’s agent represented that certain profits could be made by enlarging the capacity of the plant, and objected to paying the guaranteed notes because such profits were not made. It appeared that plaintiff, prior to the execution" of the contract and the guaranteeing of the notes, wrote the defendant that it could not guarantee that the result would equal the agent’s estimates, and that stockholders must take their own risks. And it is held that the defendant had no right to rely upon the agent’s representations.
    3. The defendant, with knowledge that no profits were being made, asked for and received extensions of time for the payment of the notes, and wrote plaintiff that he was negotiating a sale-of the whole plant, and, if he succeeded, he would take the entire stock and bonds held by the plaintiff. And it is held that the case is ruled by Wylie v. Gamble, 95 Mich. 564; that, if defendant desired to rescind on the ground of fraud, it was his duty, upon discovering the facts, at once to announce his purpose to do so, and to adhere to it.
    Error to Manistee. (Judkins, J.)
    Argued October 26, 1894.
    Decided January 4, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts ar.e stated in the opinion.

      6'murthwaite é Foiuler, for appellant.

      George L. Hillilcer, for plain-tiff.
   Long, J.

This action is to recover against defendant, as guarantor, the amount of a certain promissory note, of $1,199.67, made by the Citizens’ Electric Light & Power Company to the plaintiff, and dated March 15, 1892. Three notes were given at the same date (two for $1,000 each, and the note in suit), all signed by the Citizens’ Electric Light & Power Co., Manistee, Mich., George A. Hart, president, and Louis E. Morris, secretary. The following written guaranty was executed and delivered simultaneously with the notes:

“I hereby guarantee the payment at maturity of the following notes given by the Citizens’ Electric Light & Power Company, Manistee, Mich., to the Western Electric Company, Chicago, 111.: Three notes, all dated March 15, 1892, and bearing 6 per cent, interest, — two for $1,000 each, one due June 15, 1892, and the other due July 15, 1892; one for $1,199.67, due August 15, 1892.

“Geo. A. Hart.”

The plea is the general issue, with notice that the guaranty of the note was made pursuant to a certain contract, dated January 6, 1892, and that the execution of the contract and guaranty was, so far as the defendant was concerned and became a party thereto, procured by fraud on the part of plaintiff. This contract was between the Citizens’ Electric Light & Power Company, party of the first part, the Western Electric Light Company, party of the second part, and George A. Hart, party of the third part. It admits an indebtedness of first party to second party, under former contracts, of $14,604.02. By the terms of the contract, second party was to furnish first party a steam plant, dynamos, incandescent lamps, wire, etc., for the sum of $9,210; first party to pay or secure the old debt of $14,-604.02, and the $9,210, or a total indebtedness of $23,-814.02, in the following manner:

1. To issue its bonds for $15,000, the principal payable in 10 years, with interest payable semi-annually at 6 per cent., $14,000 of which bonds were to be delivered to second party.

2. Second party to subscribe for $5,000 of the capital •stock of first party, and such stock to be taken as full payment of $5,000 on such indebtedness.

3. To secure the payment of the balance of $4,814.02, five notes were to be given, running one, two, three, four, and five months from January 15, 1892; that is, four notes of $1,000, and the last one of $814.02, bearing interest at 6 per cent.

4. The third party to indorse on said notes his individual guaranty of payment at maturity; and, in the event of being compelled to pay them, he further agreed to accept from first party, in satisfaction thereof, an equal amount of first party’s capital stock, at par.

It appears that the bonds were issued, the stock turned over to second party, and the notes made and indorsed, as agreed in the contract.

The notice attached to the plea states that prior to the making of this contract an agent of the plaintiff came to the city of Manistee, and organized the Citizens’ Electric Light & Power Company, and represented that it would be a profitable investment, and made certain statements, showing large dividends that would be paid upon the stock and upon the investment, and thereby secured a large number of subscribers, the defendant subscribing for $800 of the stock by deeding a lot for the plant, the agent of the plaintiff company pledging that the plaintiff would stand by the company, and furnish and supply it with all things necessary to make its plant profitable, good, and substantial; that the company started with an arc lighting system, and after running for a short time it was found that the representations made were untrue; that plaintiff then sent an expert to Manistee, who represented to the stockholders that if the company would purchase a large amount of supplies from plaintiff, enlarge the capacity, and put in an incandescent lighting system, very large profits would accrue to the stockholders; that the agent made certain statements in writing, showing that by adopting the course suggested by him a net profit of $344 per month would accrue to the company, which statements the officers and stockholders and defendant, Hart, believed and relied upon, in making the contract above set forth, but which were false, and were so made with intent to deceive and defraud the company and defendant, Hart; that at that time, and as a further inducement to the defendant to guarantee said notes, said agent assured him that the profits would pay said notes, and, even if defendant should pay them, the stock received would be worth much more than the money so paid; that said agent, as a further inducement to the signing of the notes by defendant, assured him that the plaintiff would extend to the company unlimited credit, to keep its plant in excellent order, and would do all things in its power to place the company upon a solid basis and sound financial standing, all of which statements were untrue; that, after running the plant in an economical manner, no profits have been realized, and the company has been unable to pay said notes, except one, which was paid by borrowing the money by the indorsement of defendant; that as soon as the notes were secured, and the indorsement of defendant made upon them, the plaintiff refused to do anything further for the company, refused to sell or deliver anything to it unless it was shipped “Collect on delivery," and has wholly ignored all its pledges, promises, and assurances; that the company has been unable to pay any of its indebtedness, principal or interest, and is now threatened by plaintiff with proceedings to foreclose its mortgage; and defendant therefore insists that his indorsement was procured through fraud, and without consideration.

On the trial the defendant was called as a witness in his own behalf, and asked to state what was said by plaintiff’s agent, at the time of his first coming to Manistee to organize a company, in regard to the working and prospective success of the proposed corporation. This was objected to for the reason that defendant had entered into another contract, of January 6, 1892, while the statements referred to related to the time of the organization of the company. The court sustained this objection, stating that—

“When defendant signed this contract, he closed his' mouth against all that took place prior to that. He admits the organization and indebtedness of the company, and admits that it had not been doing a profitable business, and wanted more goods, and, to buy them, he gave his notes, and guaranteed the payment; and this defendant makes no complaint whatever, and I don’t think it lies in his mouth to raise the question at all. I am satisfied on that, and, unless you have more proof, I will strike the entire defense out. I think it is too far fetched to admit of any controversy, and that there is no merit in it; and I shall sustain the objection.”

The exception to this ruling raises the first question in controversy. We think the court properly held this testimony incompetent. It appears conclusively that the defendant knew at the time he entered into the second contract all the facts that he claimed, on the trial, constituted the fraud. The representations were made before the second contract was entered into, and yet, with full knowledge that these representations were not true in fact, he entered into the second arrangement. By this new agreement, he lost his right to complain of the prior transactions. Craig v. Bradley, 26 Mich. 353, 369; Dailey v. King, 79 Id. 568.

It is next contended that the court was in error in taking the case from the jury. The defendant was permitted to go fully into the case, and his testimony, together with his letters which were introduced in evidence, show that he did not claim that any fraud had been perpetrated upon him until about the time suit was brought upon the note; and the only claim of fraud now made is that plaintiff’s agent, Ellicott, represented that certain profits could be made by extending the capacity of the plant. Because these profits were not made, defendant objects to paying the note. It appears, however, that the Citizens’ Company was managed by the defendant, as president, with a secretary and superintendent. At the time the estimates for the new arrangement were made, Ellicott was then acting as plaintiff’s agent. Plaintiff, in sending the estimates forward, on December 30, 1891, which was seven days before the execution of the second contract, speaking of the showing made by the estimates, stated:

On this showing, you should have no difficulty in placing the stock. Of course, we cannot guarantee that the result will equal Mr. Ellicott’s estimates, but they seem to us to be carefully and correctly made. Stockholders must take their own risk, howevei’.”

In view of this statement, it cannot be said that the defendant had a right to rely upon Ellicott’s representations as to profits. But, aside from this, it appears that the defendant, after knowing all the facts, and that no profits were being made, began asking for extensions of time upon the notes, and as late as October, 1892, he wrote the plaintiff that he was negotiating a sale of the whole plant, and if he succeeded he would take the entire of plaintiff’s stock and bonds. We think the case falls within the rule of Wylie v. Gamble, 95 Mich. 564. If defendant ■desired to rescind on the ground of fraud, it was his duty, ■upon discovery of the facts, at once to announce his purpose to do so, and to adhere to it.

Judgment affirmed.

McGrath, 0. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    Martin Bresnahan v. William M. Ross.

      Logs and logging — Conclusiveness of scale — Question for jury— Damages.

    1. The rule laid down in Savercool v. Farwell, 17 Mich. 308, Ortman v. Green, 26 Id. 209, and Malone v. Gates, 87 Id. 332, is that when a scaler, agreed upon by both parties to a logging contract to scale the logs cut under the contract, has exercised his judgment in making the scale, and no fraud or mistake in figures is shown, the scale must stand.
    ■$. A contract for the sale of logs provided that no rough, knotty, wormy, or top logs were to be taken; that all logs were to be cut from good, sound, green, body timber; and that the scaler, who was agreed upon in the contract, should scale the logs merchantable. The logs, at the time they were attempted to be scaled, lay only one tier deep on the skidways, were covered with snow from two to two and one-half feet deep, which was not removed, and the ends were covered with ice. The-vendor sued to recover a balance claimed to be due on the contract. No claim was made by the defendant that the scaler was dishonest, or that he in any way attempted to-mate an unfair scale in the interest of either party; but it was claimed that he made no scale at all, and could make none, under the conditions stated. And it is held that it should have been left for the jury to determine whether the scale was such as the one provided for in the contract; that, if they found that it was not, then they should resort to other means and other measurements to determine the amount of the logs.
    3. The vendee accepted some logs which were below the standard fixed in the contract. And it is held that the jury should have determined their reasonable market value, which would be the measure of plaintiff’s recovery for said logs.
    Error to Bay. (Maxwell, J.)
    Argued November 2, 1894.
    Decided January 4, 1895.

      Assumpsit. Defendant brings error.
    Reversed.
    The-facts are stated in the opinion.

      J. L. Stoddard, for appellant.

      Simonson, Gillett & Courtriglit (H. H. Woodruff, -of' counsel), for plaintiff.
   Long, J.

This action was brought to recover a balance-claimed to be due upon a certain contract dated November 24, 1893. By the contract the plaintiff agreed to sell to-the defendant all the oak saw logs he might lumber off' of certain lands therein described, “for the sum of $10 per M. for same loaded on cars at Roscommon in good shape. All logs to be cut 12, 14, and 16 feet long, and as much as possible 14 feet long, and to be 12 inches and up at the small end. No rough, knotty, wormy, or top logs to be taken. All logs to be cut from good, sound, green, body timber, and not to take more than 10 logs to the-thousand. The above logs to be lumbered and loaded on ■cars on or before April 30, 1894. Logs to be scaled merchantable by Josiah Hoover when there is 100 M. or more -on skids.” The contract then provides for the time and manner of payment; and it is conceded that defendant has made payments upon the contract aggregating $1,125. The evidence shows that the plaintiff let the job of lumbering to one Charles Blanchard, and that very shortly after the contract was made the work of lumbering was begun. After the logs were cut and skidded, Mr. Hoover, the scaler mentioned in the contract, went to Roscommon and made a scale. About the middle of March following, the plaintiff began shipping the logs to Bay City. On the arrival •of the first train load, the defendant wired plaintiff:

“ Come down. Logs will have to be rescaled. About Rali dead and wormy timber. Cars not half loaded. Load heavier.”

Plaintiff did not respond to this message, but kept on shipping the logs, and on the next day defendant wired him again:

“Why don’t you come down? I cannot accept the dead and wormy logs.”

After all the logs were shipped, the plaintiff wired defendant, on March 22:

“ Will be in Bay City at 1 o’clock to-morrow.”

Before plaintiff reached Bay City all the logs had been unloaded, and the defendant had commenced sawing. Defendant says he commenced on the day plaintiff arrived; plaintiff says, two days before. Defendant then gave plaintiff to understand that he would not accept the woods scale made by Hoover, but no agreement was arrived at. Deiendant had Hoover make another scale, and the railroad •company had also made a scale. No money was paid on "the contract after the logs were received at Bay City. Before going north to make the scale, Hoover was notified, that he would find some non-contract logs there, of which-he was to make a separate scale. He made the scale with this in mind. On the trial the defendant contended that he was not bound by the scale made by Hoover. Hoover was called as a witness by plaintiff, and gave testimony which defendant contends shows that he did not use his judgment in getting at the correct amount, for the reason that the logs were so covered with snow and ice that he-could not see them to estimate the quantity and quality of' the timber. But it appears that in making the scale he separated the logs, and scaled the non-contract ones as well as the others. There is no doubt about the logs scaled at Roscommon being the same logs which Hoover' afterwards scaled at Bay City, but there is a great difference in the-two scales. Hoover attempts to account for it by saying-he could not see the logs by reason of the snow and ice-upon them. He measured one end of the logs, and Mr. Cox, who was also sworn as a witness in the case, measured the other end, and he gave, as he says, the correct measurement to Hoover, who got the contents. Mr. Hoover testified further as follows:

“ Q. Is the difference in the number of feet in the two-scales a difference in the judgment, one place and the other?

“A. No; I couldn't see the logs in the woods.

“ Q. Is it, or is it not, a fact that the difference in your scale is a difference simply in judgment of one place and the other?

“A. No; I told you I didn't see the logs in the woods. They were buried in the snow, and here they laid out so-I could see the culls. Lots of the logs there ain't a board in.

“ Q. Is the difference in the quantity of the logs in one-place and the other a difference in your judgment in the two places? *

“A. Certainly there is a difference in judgment.

Q. How otherwise can you explain the difference in the number of feet that you found in the logs here and the number of logs in the woods, except your difference in. judgment?

“A. In seeing the logs here, and in the woods I did not see them. I had no chance there to scale them.

Q. That is not an answer to the question.

“A.' I cannot answer it any other way. I saw the logs here, and there I did not. I scaled out all the defects I saw in the woods.

“ Q. Does that account for the difference in judgment?

“A. Yes; what I didn’t see in the woods.

Q. Then it is not a difference in figures?

“A. No.

“ Q. You think there was a mistake in your scale in the woods. Was that a mistake in computation or a mistake in judgment?

“A. Well, I don’t know. The mistake was made on account of the snow. I couldn’t see the logs. I supposed I scaled them all at that time. It was a mistake in the logs. I couldn’t see the logs. * * * * *

Q. Then how do you account for your difference in the scale at Bay City and Roscommon in any other way, except by a difference in judgment on the logs?

“A. I told you I couldn’t see the logs in Roscommon, and here I saw them. * * * , * * *

“ Q. What, if anything, prevented you from correctly estimating the amount of the logs except the snow on them?'

“A. That is all; I could not see the logs.”

Upon recross-examination he testified:

“It was not possible, in the condition in which I found those logs in the woods, for me, or any one else, to make a reasonably correct scale. When I started from Bay City to go up there to make the scale, I didn’t think there was over 6 inches of snow. I spoke to the young man John C. Ross, and he said there was no snow. If I had known about it, I would not have undertaken to scale them at all; but after getting up there I thought I would go ahead, and do the best I could, as it was quite an expense to get me in there. It is not a matter of judgment to tell a dead log from a green one. Anybody, whether he is a scaler or not, can tell that, if he can see the logs. * * * It is not a matter of judgment to tell a log that is 12 inches and upwards from a log that is less than 12 inches; that is simply a matter of measurement. The judgment of the scaler is only brought into play when he puts his rule upon a log that is defective in some way, and he makes, in his own mind, a certain deduction for the defect. That is the only way where the judgment comes in play; so that, as to determining whether logs are dead or green logs, it don’t require the judgment of the scaler; and in determining whether logs are 12 inches and upwards, or less than 12 inches, that is not a matter of judgment.”

The following shows the two scales, according to Hoover’s testimony:

hoover’s woods scale. hoover’s bay city scale.
No. Logs. No. Ft. No. Logs. No. Ft.
Green oak________1,858 215,000 Green oak..... — 1,063 100,710
Dry-............. 67 7,600 Dry and wormy-. 735 56,920
10 and 11 in....... 200 7,250 Under 12 in....... 231 7,290
Culls............. 71
Total.........2,120 229,850 Total.........2,100 164920

The court was requested by defendant to charge the jury:

“1. Under the contract between the plaintiff and the •defendant dated November 24, 1893, the plaintiff agreed to sell and deliver to the defendant, on cars at Roscommon, in good shajDe, the oak saw logs to be cut off of the land therein described, c all logs to be cut 12, 14, and 16 feet long, and as much as possible 14 feet long, and to be 12 inches and up at the small end; no rough, knotty, wormy, or top logs to be taken; all logs to be cut from good, sound, green, body timber, and not to take more than 10 logs to the thousand;’ and the plaintiff had no right to ship to the defendant logs cut from dead or wormy timber, nor to ship him logs that were less than 12 inches in diameter at the small end; and Mr. Hoover, the scaler mentioned in the contract, had no right to scale any wormy logs, or any logs that were not cut from good, sound, green, body timber; and if he did scale any such logs, that did not give the plaintiff the right to ship them to the defendant; and if the plaintiff shipped to the defendant wormy logs, or logs that were not cut from good, sound, green, body timber, mingling such logs with the logs that the defendant was entitled to under the contract, and if it was impracticable for the defendant to sort out and reject such wormy and dead logs, the defendant cannot be required to pay the contract price therefor, but he is only bound to pay what such defective logs were fairly worth.

“2. It was the duty of Mr. Hoover to scale the kind of logs mentioned in the contract, and for that purpose he was agent for both parties; but, if he went to scaling other logs not provided for in the contract, he was not the agent of either party in doing that, and any scale made by him of such non-contract logs would not bind either of the parties; and if you find that Mr. Hoover, when he scaled the logs in the woods, scaled, and included in his scale bill rendered to the parties to the contract, a large number of wormy logs, and of logs that were not cut from good, sound, green, body timber, and if such non-contract logs cannot be separated in his scale from the other logs scaled by him, then such scale is not binding upon the defendant, and you must determine, from all the evidence in this case, how many feet of contract logs there were delivered to the •defendant.”

“4. The defendant is liable for the amount of contract logs, at contract price of $10 per thousand feet, and for the dead and wormy logs at what they are fairly worth;' and in determining the amount to which the plaintiff may be entitled for tbe wormy logs, and logs that were not cut from good, sound, green, body timber, you should take into •consideration any excessive amount of freight which the defendant may have been required to pay upon the logs by reason of dead and wormy logs being mingled with contract logs, and shipped to him by the plaintiff upon the same cars to Bay City.

“5. It appearing, from the undisputed testimony, that the scale of the logs made in the woods was not made entirely by Hoover, but that he scaled at one end of the logs and the young man Cox the other, and it also appearing that Cox had never, except upon one occasion, some three or four years prior, done any scaling or assisted in making any scale, the woods scale so made is not binding upon the defendant.”

These requests were refused, and the court directed the jury as follows:

“Now, under the circumstances, I feel compelled to charge you that this scale made by Mr. Hoover in the woods is, to the extent of the contract logs, binding and final; that what he determined then was the final determination; and that no subsequent dissatisfaction of Mr.. Eoss would make any difference. There. is no fraud charged; there is no great mistake, except in the judgment or exercise of judgment. Now, an umpire like that can only exercise his judgment once, and when he has exercised it honestly, and according to his judgment at the time, that is the end of that. Therefore you will find a verdict for the plaintiff for the sum of $1,037.50. In addition to-that, the plaintiff claims that he furnished 67 dry logs.”

The jury were directed that plaintiff could recover only what these logs were worth, and that he had a right to-such value, as they had been received by defendant and sawed. At the conclusion of the above portion of the charge the court stated:

“The attorney for the defendant submits to me the following requests, all of which I refuse, except the third. The third is as follows:

‘“If you find that the scale of logs made in the woods by Mr. Hoover varies materially from what a reasonably true and correct scale of the logs under the contract would have been, and if that variation was caused by fraud on the part of Mr. Hoover, or of the person who assisted him in making the scale, or by gross mistake upon the part of Mr. Hoover or his assistant, then such scale-is not binding upon Mr. Ross, and you will have to determine what the quantity of contract logs actually delivered was, from all the evidence bearing upon that subject which has been given on the trial.’

“I give you that request.

“Mr. Stoddard: Now, if your honor please, that being different from what your honor intimated before the charge was commenced, I would like to argue that question to-the jury.

The Court: I have stated to the jury that I did not see any evidence of fraud or any evidence of mistake. Of course, they have heard the testimony the same as I have, but still I think, in the abstract, the request is very proper; but I don’t think it applies to the case. (Defendant’s counsel excepted.)

“Mr. Stoddard: I ask to argue that question to the jury under that request.

The Court: I don’t think you can have any argument now, at this late stage of the case.”

The jury returned a verdict for plaintiff of $1,128.24.

We may say here that counsel for defendant, before the charge was given, had announced that the only question he desired to address the jury upon was whether the logs shipped were the same logs scaled in the woods. We think there can be no question, under the evidence, of that fact. But it appears that before the court commenced the charge to the jury h® had substantially stated to counsel that he would hold the woods scale binding and conclusive upon the parties, and he did so charge. If, therefore, he was in error in this, we think he was also in error in not permitting counsel to argue the third request to the jury. The main question in the case, however, is whether the court was correct in directing the jury as he at first did direct them, — that the woods scale was conclusive.

It is contended by counsel for defendant that the case is governed by Malone v. Gates, 87 Mich. 332. In that ease, however, the question was one of measurement. The contract provided:

“No dry or dead logs shall be taken by second party which shall measure less than 7 inches in diameter at small end, inside the sap; and it is further agreed that all timber shall be scaled merchantable for lumber.”

On the trial of that case the court directed the jury, substantially, that the scaler had no right to scale any dry logs under 7 inches in diameter inside the sap, and, if he did so, it was the duty of plaintiffs to throw them out, as the defendant would be under no obligation to pay for them, the contract not applying to them; that the scaler was sent there to scale the kind of logs mentioned in the contract, and for that purpose he was the agent of both parties, and his scale, if honestly made, would bind the parties; but if he went to scaling something else, that was not provided for in the contract, he was not the agent for either party for doing that, and no scale that he might make of those logs would bind anybody. This charge was approved by this Court; but it will readily be seen that it had reference to dry logs under 7 inches. It did not require the exercise of judgment to determine this question. It could be ascertained by the mere measurement. In tho present case, however, Hoover was sent to make the scale for the very purpose of determining what were contract logs, and it required the exercise of judgment to determine that question, as, under the contract, no rough, knotty, wormy, or top logs were to be taken, and all logs were to be cut from good, sound, green, body timber. It was for Hoover to determine whether a log was rough, knotty, or wormy, and whether it was sound, green, body timber. It was not a matter of measurement, but an exercise of judgment, in determining whether each log came within the terms of the agreement. There were no other means agreed upon to determine these questions than Hoover’s judgment; and, as was said in Malone v. Gates, supra:His scale, if free from fraud or gross mistake, — a mistake not depending upon the judgment of the scaler, — would be binding upon both parties.” It was said further, in that case, and the language may well be applied to the present one:

If its honesty or correctness was subsequently attacked, and any testimony introduced tending to show that it was dishonestly or unfairly made, or that there was gross mistake in it, the burden of proof would then be on the plaintiffs to establish its correctness. By gross mistake we mean a mistake which is clearly shown to have left out some of the logs, or increased the scale by a mistake in the tally or in the addition of the amounts on the tally-sheets, or something of that kind, and not an honest error of judgment in the scaler; for it is well understood and established that, in estimating the merchantable lumber in a given log, the judgment of scalers varies more or less, and that the scale cannot be made so accurate that all scalers will agree upon it.”

In Savercool v. Farwell, 17 Mich. 308, 321, it was said:

“It was insisted by the defendant below that the contracts did not make the inspection of the lumber conclusivé upon the parties, and he offered evidence tending to show that some of the lumber rejected by the inspector was such as came within the description specified in the contracts. We think the court was right in excluding the evidence. If the inspection was not to be conclusive, we are at loss to perceive how it could have any intelligible effect under the contract.”

In Ortman v. Green, 26 Mich. 209, 215, it was said:

“The scaling involves two processes, — one of measurement and computation by figures, and one of judgment, depending on knowledge and experience. * * * If Ortman, with adequate knowledge of Waders competency as a scaler of logs, deliberately agreed to be satisfied with his scale made on the bank, or if Wade was in fact an honest and competent scaler, no complaint could be made of any mere error of judgment not indicating that there had been any blunder in figures or measurement.”

It is true that in the present case no claim is made by the defendant that Hoover-was a dishonest scaler, or that he in any way attempted to make an unfair scale in the interests of either party; but it is claimed that he made no scale at all, and could make none, under the conditions existing. The logs lay only one deep on the skidways, and were covered with snow from two to two and one-half feet deep. The ends were covered with ice. The snow was not removed. The contract contemplated that the logs should be scaled by Hoover when they were in such condition that a fair scale could be made, and he could exercise honest and fair judgment. The contract was that they were to be scaled merchantable. If his testimony was true, this could not be done. It appears that the scale made by the railroad company as the basis for its charge for freight was 55,000 feet less than the scale made by Hoover in the woods. The case differs materially in these respects from the cases above cited. The rule laid down in those cases is that when there has been an exercise of judgment, and no fraud- is shown and no mistake of figures, the scale must stand; but here there was no exercise of judgment, if the testimony of Hoover be true. We think the question was one that should have been left to the jury to determine, whether the scale in the woods was such as the one provided for in the contract; and, if they found that it was not, then they should resort to other means and other measurements to determine the amount. The -court was therefore in error in stating to the jury that the woods scale must govern. The defendant’s first and second requests to charge should have been given. As to the non-contract logs, the jury should determine their reasonable market value.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J".

text:
    Rebecca L. Felcher v. Robert McMillan.
    [See 97 Mich. 633; 100 Id. 341.]

      Landlord and tenant — Fixtures—Conversion.
    1. The law does not permit tenants, as a matter of right, to remove fixtures which are built into the leased building so as to become a part of it; citing O’Brien v. Kusterer, 27 Mich. 289.
    2. There can be no conversion while the party complaining is in the actual possession of and using the property alleged to have been converted for the purpose and in the place in which it was intended to be placed and used.
    3. Demand and refusal do not constitute conversion, but are only evidence thereof; citing Daggett v. Davis, 53 Mich. 35.
    4. A party upon whom demand is made for the surrender of personal property lawfully in his possession is entitled to a reasonable time in which to make reply to suck demand; citing Flannery v. Brewer, 66 Mick. 609.
    5. Tke purchaser of a leasehold and of certain fixtures which the original tenants had placed in the leased building, after surrendering to the landlord the possession of said fixtures, demanded their return. And it is held that a reply made within 24 hours, Sunday excepted, after the demand, was made within a reasonable time.
    Error to Wayne. (Carpenter, J.)
    Argued November 1, 1894.
    Decided January 4, 1895.
    Trover. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      T. B. Tarsney and W. W. Wicker, for appellant.

      Gray é Gray, for defendant.
   Grant, J".

May 1, 1889, the defendant and his brother George executed a lease of the first floor and basement of that portion of the McMillan brick building known as “No. 7 Port street,” in the city of Detroit, to E. J. Roos .& Co., “for the purpose of a restaurant and eating house, and, if desired, a first-class and at all times well-regulated bar,” for the period of five years. All improvements and alterations which the lessees desired and the lessors assented to were to be made at the expense of the lessees. No assignment, releasing, or subletting was permitted without the written consent of the lessors indorsed on the lease. Roos & Co. made extensive alterations, and put in expensive fixtures. Roos & Co. subsequently transferred all their rights in the improvements and leasehold to Roth-well & Co., who transferred them to the plaintiff. No such assent as the lease provided for was obtained for these transfers. There was evidence of a verbal assent. The business, it appears, was not prosperous; the rent was largely in arrears; and in July, 1893, the lessors commenced summary proceedings to recover against Boos & Co., the plaintiff, and her husband, and recovered judgment, which was appealed to the circuit and to this Court. 100 Mich. 341. The lessors commenced new proceedings in December, 1893, to recover possession, in which they again recovered judgment, under which a writ of restitution became issuable January 5, 1894. Mrs. Felcher then voluntarily surrendered possession to the lessors. Meanwhile Mrs. Felch'er and her husband threatened to remove the fixtures, whereupon the lessors filed a bill in chancery, alleging that these fixtures were permanent, and constituted a part of the freehold, and prayed for a temporary and permanent injunction against their removal. A temporary injunction'was granted, and was in full force when the Felchers surrendered possession. No answer was filed in that suit, and, after possession was surrendered, the suit was discontinued. On Friday, January 26, demand was made by the plaintiff for the possession of the fixtures. Defendant referred plaintiff’s attorney, who made the demand, to his attorney, Mr. Gray, saying that whatever he said would be all right. Mr. Gray asked for a list of the articles demanded, which was furnished. The evidence on the part of the plaintiff was to the effect that Gray promised an answer by 2 o’clock that afternoon. Mr. Gray testified that he promised to do his best to give an answer by that time. The next forenoon plaintiff commenced this action of trover for the conversion of the property. On the same day (whether before or after the writ was served does not appear) Mr. Gray wrote a letter to plaintiff’s attorney, giving reason for delay in sending an answer, and promising an answer on the following Monday. Monday Mr. Gray replied, stating that Mr. McMillan had no-objection to the removal of the articles enumerated in the list except the sewers, the basement flooring, and all pipes and wires under the flooring, the iron post's supporting the weight of the building, and the partition, door, and entrance leading out to Fort street; also that she might remove the partition, door, and entrance if she would deposit with one Gordon W. Lloyd, architect, $75 as a guaranty to close the entrance, and replace the foundation, etc., in the same condition that it was when the store was ¡eased to Roos & Co.; also that she might remove the flooring, sewer pipes, and all matter excepted above, except the partition and entrance to Fort street, if she would deposit $350 with Mr. Lloyd as a guaranty to replace the sewers, floors, etc., in proper condition as when the same was leased to Roos & Co.; and also that she might remove the two refrigerators on the ground floor, which formed the front windows on either side of the door, if she would deposit with Mr. Lloyd $100 as a guaranty to replace the spaces with French plate glass, similar to the ones removed. The letter further stated that the offer was made without any concession of her right to remove the articles designated.

The situation of the premises before and after the lease and improvements were made is described by Mr. Lloyd, who was familiar with them, as follows:

. “ There had been a cement floor, in good condition, with planks laid over. The new flooring was made as follows: The front two-thirds of the cellar was excavated about a foot, the old cement flooring being removed. A bed of concrete was first laid; then a bed of cement; and then into the cement were laid the so-called ‘marble flooring/ which consisted of square blocks of tile made of baked cement. The concrete and cement made a homogeneous mass. The so-called ‘tiling* might be removed, but would be so broken in the removal as to be of no value. Originally, there was no entrance to the cellar from the street. The improvement consisted in making such entrance, by building a series of stone steps leading about six feet out upon the walk. This stairway was protected from the street by brass railing. The sides and ceiling of the entrance, the lower part of which was called the 'vestibule/ was constructed thus: Small tablets of tiling, two inches square, were laid in cement. The tablets could not be removed without removing part of the cement. The tablets, if unbroken and cleaned of cement, would have some value, but probably would be broken in removal. There were two partitions across the basement, besides the partition forming part of the vestibule. The latter was constructed of wood and art glass, fastened at the bottom into the concrete, and above to the main joists of the building. If this were removed, the basement would be exposed to the street. The other partitions consisted of studding, laid in the concrete, and fastened to the joists above. The studding was covered by so-called ' marble slabs/ which consisted of blocks of cement marbleized. The upper part was covered by art glass. All the partitions were built in the same way as ordinary partitions between rooms. The so-called ' marble slabs' were fastened in place by screws, and probably would be greatly broken in removal. They would be valueless unless unbroken and to be used in a place of like size. The sewers were all constructed below the concrete flooring, and it would cost more than they were worth to dig them up. The urinals, closets, and wash basins were constructed and connected in the usual manner. The three nickel-plated columns were iron columns, supporting the ground floor, and were put in place of wooden columns, previously there. The bar and counters were imbedded in cement, and firmly fastened in place. The refrigerators in the basement were built into the cement, and those on the ground floor were placed in the front windows. The lower plate glass was removed, :and the refrigerators moved into place, the front glass of the refrigerator forming the window. If they'were removed, the ground floor was open to the street. The ceiling consisted of plastering of the usual kind. The gas pipes were inclosed in the walls and ceiling, and chandeliers were attached in the usual way.”

The evidence on the part of the plaintiff tended to show that these fixtures could be removed without injury to the building. The court directed a verdict for the defendant.

The defendant has three good defenses to the action:

1. Nearly all the articles were permanently attached to the freehold, and became fixtures, under the rule in O’Brien v. Kusterer, 27 Mich. (2d ed.) 289, and authorities •cited in the note. There is nothing in the lease nor in the subsequent transactions to show that the parties intended to treat these fixtures as personal property. The verbal or written assent by the lessors to the transfer of the lease indicates no such intention. The lessees chose to remove the pillars, the partitions, the sewers, the cement floor, ■and to replace them by others which they considered better suited to their business. If they chose to replace wooden pillars with iron ones, plate-glass fronts and partitions with .refrigerators and mirrors solidly built in the partition walls, and to take up the sewers and floors, and replace them with others better and more expensive, the new ones did not thereby become trade fixtures, subject to removal by the tenant. The law does not permit tenants to remove ■fixtures which are built into the building and become a part of it. This case is nearly identical in its facts with "those in O’Brien v. Kusterer, and further comment cannot make it plainer. This might not apply to the chan■deliers and such articles as are temporarily attached, and can be removed by unscrewing, the removal of which would not mar or injure the walls or partitions; and by the letter of Mr. Gray full permission was given to remove :these.

2. Defendant was not guilty of conversion. Mr. Felcher -testified that in December, when he was attempting to remove the property, Mr. McMillan and his attorney notified him that Mr. McMillan claimed it as part of -the realty, and that, should he persist in the attempt to remove it, McMillan would cause his arrest. The chancery suit was immediately instituted, and the court granted a preliminary injunction. The Felchers neither answered nor moved for a dissolution, and this suit was still pending when the demand was made and this action commenced. Mrs. Felcher continued in the absolute possession and control of the property, except that she could not tear it out and remove it. The institution of the chancery suit was not an act of conversion. There can be no conversion while the party is in the actual possession of and using the property for the purpose and in the place in which it was intended. Lacey v. Beaudry, 53 Cal. 693; England v. Cowley, L. R. 8 Exch. 126. The reason of this is more apparent from the fact that Mrs. Felcher had it in her power to put an end to both the chancery suit and the suit to recover possession, by paying the amount of rent due. She was entitled by the statute to five days after final judgment within which to make this payment, which time did not expire until January 5. It is certain, therefore, that there could be no conversion until after the demand was made. Demand and refusal, however, do not constitute conversion, but are only evidence thereof. Daggett v. Davis, 53 Mich. 35. At this time there was no-refusal, and the chancery suit was still pending, in which the rights of the parties might have been determined. The defendant had done nothing to change the status of the property, and his acceptance of the keys of the building and possession did not affect the status of the suit, or constitute a conversion of the property.

3. We need not discuss the rights of the parties if the-plaintiff had been ejected under a writ of restitution. She voluntarily surrendered possession, and the defendant was. entitled to a reasonable time to make reply to such demand. Flannery v. Brewer, 66 Mich. 509. The reply was made within 24 hours, Sunday excepted, after the demand was made. This must be held a reasonable time, unless the promise to reply in the afternoon takes it out of the rule. We think it unreasonable to hold that the failure to reply at the precise time amounted to a refusal. The reason given for not replying within so short a time was valid. The attorney was entitled to reasonable time to see and consult his client, and determine what answer ■to give. The answer secured to the plaintiff property to which she was not entitled, as well as to which she might be entitled. Defendant was rightfully in possession of the property by the voluntary act of the plaintiff, and the conditions he required for its removal were reasonable and legal. The injunction suit having been discontinued, the plaintiff, after demand, will still be entitled to remove the ■chandeliers and other articles of personal property, and, if •defendant refuse, he will be liable in trover.

This disposal of the case renders it unnecessary to discuss the other questions raised.

The judgment is affirmed.

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


author: Montgomery, J.

text:
    Andrew J. Lamoreaux v. Nicholas Creveling, Administrator of the Estate of Lyman D. Swan, Deceased.

      Adverse possession — Waiver—Findings of fact.

    1. Where there is testimony tending to support findings of fact, the appellate court is not authorized to go into the testimony for the purpose of ascertaining whether or not it would have reached the same result upon the facts.

      '2. A defendant in ejectment, in support of his claim of title to the land in dispute by adverse possession, introduced testimony tending to show that the land had been inclosed as a part of his farm by a line fence for more than the statutory period; that during that time he had cut wood on said land, and performed other acts indicating ownership, and tending to show occupancy up to the line of the fence. And it is held that said testimony tended to establish the adverse possession claimed; citing Greene v. Anglemire, 77 Mich. 168; Sanseraintev. Torongo, 87 Id. 69.
    3. A parol agreement, made by the defendant after he had acquired such title, that he would in the future unite with the adjoining land-owner, who claimed to own the disputed piece of' land, in having a survey 'made to determine the true division line, will not — certainly, until such agreement is acted upon, and the line actually established — divest the defendant of his. title; citing Burns v. Martin, 45 Mich. 22.

    Error to Kent. (Adsit, J.)
    Argued November 2, 1894.
    Decided January 4, 1895.
    Ejectment. Plaintiff brings error.
    Affirmed.
    The facts, are stated in the opinion.

      Frank G. Holmes (Henry J, Felker, of counsel), for appellant.

      Frank A. Rodgers (M. L. Dunham, of counsel), for defendant..

       For adverse possession in case of ignorance or mistake as to boundary, see note reviewing the conflict of decisions with the case of Preble v. Railroad Co., 21 L. R. A. 829.

   Montgomery, J.

Plaintiff and the deceased, Lyman D. Swan, were owners of adjacent parcels of farm land. Plaintiff sued in ejectment for a small, triangular piece, which he claims to have shown to be a part of the government subdivision owned by him. Judgment was entered for the defendant, and, the proceedings having been revived in the name of the administrator, the case comes before ns on exceptions to the findings of fact and law.

It appears that a fence has been maintained, which has inclosed the land in dispute with that of Swan, for many years, and the circuit judge held that defendant had acquired title by adverse possession. The plaintiff contends that the testimony did not warrant the court in making' this finding of fact. The testimony offered by the defendant was that of himself and his son, George Swan. The latter testified that he had known the farm for 28 years, and1, that the fence was used as a line fence; that wood had: been cut on the strip in question by defendant, at different times, for about 24 or 25 years; that the witness could not remember when the fence was built, but that he could remember that it had been built for about 28 years. The defendant himself testified that he went upon this land in 1863; that he commenced building the fence not a great while after he bought the place; and that he had used the land to cut wood on, — and testified to other acts indicating ownership, and tending to show occupancy up to the line of the fence. We cannot say that this testimony had no tendency to show adverse and hostile possession of the land in question. Sanscrainte v. Torongo, 87 Mich. 69; Greene v. Anglemire, 77 Id. 168.

But plaintiff insists that defendant’s occupancy should not be held to be adverse for the reason that the plaintiff’s testimony tended to show that defendant admitted that the line was in dispute, and promised to join with, plaintiff in a survey to have the true line established. The plaintiff offered testimony tending to show that, some 6 or 7 years before the trial, such a conversation occurred, between the plaintiff and defendant. This is said, in plaintiff’s brief, to have been undisputed. But, on the examination of defendant, he was asked the following question:

Lamoreaux has said that you said to him a good many times, within the last 6 or 7 years, that you would have a surveyor come and find the line, and put the fence there. Is that so?

“A. No, sir; I never said any such thing. I never built any other fence between plaintiff and myself than the one in question. It is the same old brush fence. There has been no other fence there for the last 80 years.”

From this testimony it would appear that, at the most, it was a question of fact for the court as to whether defendant had acknowledged plaintiff’s claim to the strip in question. But at the date of this conversation the fence had been in existence, according to defendant’s testimony, and treated as a boundary line, for the statutory period. If defendant had acquired a title to the land by adverse possession, a parol agreement that he would in the future join in having a survey made to determine the true line would not — certainly, until such agreement was acted upon, and the line actually established — divest him of his title, whatever might have been the effect of a completed arrangement. The question is ruled by Burns v. Martin, 45 Mich. 22.

There being testimony in the case tending to support ihese findings of fact, we are not authorized to go into :fche testimony, to ascertain whether we would reach the ¡same result upon the facts; and, as the finding is conclusive ■of the plaintiff’s rights, it is unnecessary to discuss the uther questions involved.

The judgment will be affirmed, with costs.

The other Justices concurred.


text:
    John H. Cole v. Nelson Shaw, Impleaded with Charles Locklin.

      Chattel mortgage — Insecurity clause — Sale—Action upon notes— Estoppel.

    1. A clause in a chattel mortgage, which contains the usual power of sale on default in payment of the mortgage debt, authorizing the mortgagee, at any time when he shall deem himself insecure, to take possession of the mortgaged property, and dispose of the same in the manner specified in said power of sale, gives the right, in case of a seizure thereunder, to sell at once, and before the maturity of the mortgage debt; citing Shattuck v. Cole, 91 Mich. 580; Schmittdiel v. Moore, 101 Id. 590.
    -£. Where the undertaking of the makers of a chattel-mortgage note is for the absolute payment of the secured debt, it is not necessary that the mortgagee should exhaust his security before bringing suit upon the note.
    .8. Two livery-stable keepers, after mortgaging their livery stock to secure the payment of a portion of its purchase price, sold part of the stock, and substituted therefor other stock of like character, after which one of them sold his interest in the stock and business to the other, who assumed the payment of the mortgage and accompanying note. The mortgagee sought to foreclose his mortgage. The mortgagor who had assumed the payment of the mortgage forbade the mortgagee from seizing the substituted property. Thereupon the mortgagee, who had seized the entire property, turned over to said mortgagor the substituted property, and he, with the assistance of the other mortgagor, sold it, the latter stating to the purchaser that the mortgage did not cover said substituted property, and that the mortgagee had no right thereto. The mortgagee sold the remainder of the property which he had seized, and then sued the mortgagors upon their note. The mortgagor who had sold his interest in the property alone defended, and sought to charge the plaintiff with the value of the substituted property. And it is held that he is not in a position to insist that the note be reduced by the amount which said property would have brought upon a sale under the mortgage.

      Error to Kent. (Adsit, J.)
    Argued November 21, 1894.
    Decided January 4, 1895.

      Assumpsit. Defendant Shaw brings error.
    Affirmed.
    The facts are stated in the opinion.

      M. H. Walker, for appellant.

      Henry J. Felker, for plaintiff.
   Montgomery, J.

This is an action on a promissory note executed by defendants, made April 13, 1891, for $600, due two years after date, with interest at 7 per cent.,, with the privilege of paying $100 or more at any time. The note was secured by a chattel mortgage executed by defendants on personal property, consisting of horses, carriages, buggies, a dray, lumber wagon, harnesses, robes, blankets, etc. The plaintiff recovered below the amount of the note, less the sum realized by a sale of such of the-mortgaged property as came into his hands. The defendant Shaw brings error, and insists that, as the plaintiff seized the property and sold it before the mortgage was due, and without being authorized to do so under the terms of the mortgage, he should be charged with the full value of the property sold,' which is claimed to have been sufficient to satisfy the note. The appellant also claims that, for certain of the property which the plaintiff did not seize under his chattel mortgage, other property of a like kind had been substituted, and that it was the plaintiff’s duty to seize and sell this substituted property, but that, as plaintiff seized it under his chattel mortgage, and subsequently turned, it back to the mortgagor, he should be charged with the value of this substituted property, consisting of two buggies and a lumber wagon. After the giving of the mortgage, the defendant Shaw sold out his interest in the mortgaged property to his co-defendant, who assumed and agreed to pay the note and mortgage. The case was tried before the circuit judge without a jury, and comes before us upon special findings of fact and law.

1. As to the first contention of the defendant, the mortgage contained the usual provision that—

“If default be made in such payment, the said John H. Cole is hereby authorized to and shall sell, at public or private sale, the goods, chattels, and personal property hereinbefore mentioned, or so much thereof as may be necessary to satisfy the said debt, interest, and reasonable expenses, and to retain the same out of the proceeds of such sale.”

It also contained the further provision that—

“The said John H. Cole is hereby authorized, at any time when he shall deem himself insecure, or if the said parties of the first part shall sell, assign, or dispose of, or attempt to sell, assign, or dispose of, the whole or any part of the said goods and chattels, or remove, or attempt to remove, the whole or any part thereof from the said township of Sparta, without the written assent of the party of the second part, then and from thenceforth it shall and may be lawful for the said party of the second part, his executors, administrators, or assigns, or his, her, or their authorized agent, to enter upon the premises of the said party of the first part, or any place or places where the said goods and chattels, or any part thereof, may be, and take possession thereof, and dispose of the same in the manner above specified.”

A mortgage containing similar provisions was before the Court and construed in the case of Shattuck v. Cole, 91 Mich. 580; and, while the question was not presented in precisely the same form, it was then considered that the intention of the parties was that, in case of a seizure of the' property under the insecurity clause above quoted, it was the duty of the mortgagee to proceed to sale at once.

Attention is called to the case of Brink v. Freoff, 40 Mich. 610, 44 Id. 70, in which it was held that the power to seize the property covered by the mortgage did not authorize a sale until the mortgage became due. But this case did not turn upon the construction of any such clause as is contained in the present mortgage. There can be no doubt about the validity of a provision authorizing the mortgagee to take possession and sell the property. See Schmittdiel v. Moore, 101 Mich. 590, and cases cited. The contention of defendant's counsel is that this chattel mortgage was not to be so construed, but we think the circuit judge correctly construed the instrument. No provision is made for retaining the property in the possession of the mortgagee, but, on the contrary, upon seizing the property under the insecurity clause, he is to “dispose of the same in the manner above specified;" and the “manner above specified" is to sell the same at public or private sale, to satisfy the debt, interest, and reasonable expenses.

2. As to the buggies and lumber wagon, it is very questionable whether the defendant is in position to raise this question. The undertaking in the note to pay the debt to plaintiff is absolute. It was not necessary that he should exhaust his security before bringing suit upon the note.

But it is insisted that the plaintiff actually seized the property which is claimed to have been substituted, and afterwards turned it back to the possession of the mortgagor. If, as a matter of fact, the property was subject to his mortgage, this would not have prevented the defendant Shaw from making payment and being subrogated to the rights of the mortgagee. But, further than this, the circuit judge found, as to this property,—

“ That plaintiff was forbidden by the agent of defendant Locklin, in charge of the property, to take property not covered by the mortgage, and that such property was not disposed of or sold by plaintiff, but that the same was, after the mortgage sale, disposed of by said defendant Locklin, with the aid of defendant Shaw, who induced a purchaser to purchase said property by the statement that plaintiff’s said mortgage did not cover such property, and that said Shaw claimed that said plaintiff had no right to said property.”

There is no finding that the plaintiff consented to the sale of the property by Locklin, and, if the property was subject to his mortgage before seizure, it was equally so after it had been turned back to the possession of Locklin. On the contrary, there is a finding that defendant Shaw was active in inducing a purchaser to purchase said property from Locklin. We do not think, under these circumstances, that he is in position to insist that the note b'e reduced by the amount which the property would have brought upon a sale.

We have not overlooked the contention of defendant that this finding is not supported by the testimony, but we think there was some testimony upon which to base the finding, and we cannot consider its weight.

We find no error in the record.

Judgment will be affirmed, with costs.

The other Justices concurred.


text:
    James D. Turnbull v. John A. Widner.
    [See 94 Mich. 87.]

      Trover — Evidence of conversion.

    A contract for the sale of a quantity of ties provided that the ties should be made of sound timber, and conform to and be subject to Chicago inspection, to be made at any port to which the ties might be consigned by the vendee upon either of the. Great Lakes, no rejected ties to be paid for. The vendee’s agent received a portion of the ties on board the vessel, and refused to receive certain worthless ties, made of unsound timber, and, as claimed by the vendor, refused to receive certain other ties which conformed to the contract. The rejected ties were marked and piled upon the dock, and after a time, by the order of the vendor’s foreman, were thrown into the lake. The vendor sued the agent of the vendee in trover for said rejected ties. And it is held that the fact that it was the intention of the parties that the ties should be inspected at the port of destination will not sustain the action; that, whether or not the defendant was right in insisting upon making an inspection of the ties at the port of shipment, the fact that he made such inspection did not amount to a conversion of the rejected ties.
    Error to Alpena. (Kelley, J.)
    Argued November 21, 1894.
    Decided January 4, 1895.
    Trover. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      J. D. Turnbull, for appellant.

      Frank Emerick, for defendant.
   Montgomery, J.

This is an action of trover. The facts in the case are not much in dispute. The plaintiff had contracted, through a trustee, M. W. O’Brien, to sell to one Ed. E. Ayer, of Chicago, a quantity of cedar ties. The defendant, Widner, was the agent of Ayer. In the spring of 1890 the defendant loaded, from plaintiff’s dock in Alpena, two vessels with ties to be taken under the contract. The plaintiff was not at the time present, but was represented by his foreman, Charles Shank, who, plaintiff says in his testimony, had charge of the men in loading the boats. There was some claim by plaintiff that he notified defendant not to send boats until later, as the ties were covered with ice. He testifies that he went from home for about a week, and, when he came back, heard that they had been shipping ties. He says: “I think Widner told me. I supposed, if he had, it was all right.” The contract between the parties provided that the ties should be “made of sound timber, and conform to and be subject in all respects to Chicago inspection, to be made at any port to which said ties may be consigned by said second party, upon either of the Great Lakes.” It also provided that—

“Upon the inspection of said ties herein provided for, no rejected ties shall be paid for at all, and no claim for pay for such ties shall be made; but said second party, after deducting rejected ties, shall not claim, upon said inspection, more than 10 per cent, of said remainder to be culls.”

On receiving the ties aboard the vessels at Alpena, defendant, Widner, refused to receive the “ dead culls,” as they were called, which were ties of unsound timber, and, .as appears by all the testimony in the case, were worthless. It is the claim of the plaintiff, further, that Widner rejected ties which were sound and merchantable.

The alleged conversion consisted of allowing the ties to be thrown into the lake. The testimony shows that defendant marked the ties which he was unwilling to accept with a blue pencil, and they were for a time piled upon the dock, but afterwards, by direction of the plaintiff’s foreman, Shank, were allowed to run into the lake. The defendant was in no way responsible for this, unless the fact of his refusing to accept the ties under his contract, coupled with the act of plaintiff’s own agent in throwing the rejected ties into the lake, makes him guilty of a conversion. We do not think that such legal responsibility attaches to him. The fact that it was the intention of the parties that the ties should be inspected at the port of destination does not establish plaintiff’s right to maintain trover for the ties rejected. Whether the defendant was right in insisting upon making an inspection or not, the fact that he did make an inspection does not amount to a conversion. The court charged the jury that—

“If the defendant did not assume to direct and control what should be done with those ties, after he had marked them; if they were then under the control of Mr. Turn-bull's foreman and his men, whose duty it was to load the vessel, to put them upon the rail; if they were under their control after Mr. Widner had marked them, and they had the control of them, either to send them into the lake or put them upon the dock, — Mr. Widner would not be liable in this action, whether he marked good ties or poor ties. But if you should find from the evidence in this case that he did actually mark good ties, and directed them to go into the lake, or refused to take them aboard the vessel, and they went into the lake, then he would be liable for a conversion of the property.”

These instructions, we think, were sufficiently favorable to the plaintiff. Indeed, we are not able to discover any evidence in the case which would have justified a recovery by the plaintiff.

Judgment will be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    Adolph F. Burwitz et al. v. Michael Jeffers.

      Lease — Parol evidence — Partnership.
    Where the owner of a store building, with full knowledge that it is desired by a copartnership for the purposes of the firm business, and that it is their intention so to use it if procured, declines to lease it to the firm, but does lease it to one of the partners, and two of the three remaining partners become' sureties for the payment of the rent and the performance by the lessee of the other covenants of the lease, an action for damages for the refusal of the lessor to deliver possession to the lessee will not lie in favor of the firm.

      Error to Saginaw. (Wilber, J.)
    Argued November 22, 1894.
    Decided January 4, 1895.

      Assumpsit. Both parties bring error.
    Reversed, and judgment entered for defendant.
    The facts are stated in the opinion.

      Humphrey S Grant, for plaintiffs.

      James H. Davitt (Hanchett & Hanchett, of counsel), for defendant.
   Grant, J.

August 5, 1892, defendant, Jeffers, and plaintiff Burwitz executed a written lease by which Jeffers leased to Burwitz the store-rooms numbered 116 North Franklin street, in the city of Saginaw, for the term of one year, with the privilege of two, “to be occupied for a general store.” The rent was $720 per annum, payable monthly. The lease contained the usual covenants for repair, and against assigning, transferring, or subletting without the written assent of Jeffers. Plaintiffs Strauss and Cooper became sureties for the payment of the rent and the faithful performance of the covenants, and the contract of suretyship was indorsed upon the lease, and signed by them. August 23 it was agreed that this lease should be surrendered and canceled, and that Jeffers should lease to Burwitz a store known as 206 Genesee avenue. The first lease was surrendered and canceled, and a new lease executed in its stead, which was like the first except as to the amount of the rent, which was to be $1,500 per year, payable monthly, and it did not specify for what purpose the store was to be used. Strauss and Cooper also executed a similar contract of suretyship. Sixty dollars for rent was indorsed upon this lease, but was the same which was paid and indorsed upon the first. September 15, Mr. Burwitz tendered the balance of the month's rent, and demanded possession, which was refused. Immediately thereafter the plaintiffs instituted this suit to recover damages for breach of the contract of leasing. The declaration sets forth the lease in full, alleges that it was drawn and executed for the use and benefit of all the plaintiffs, who were copartners under the firm name of Burwitz & Co., and that this fact was known to the defendant. The parol evidence establishes the fact that Mr. Jeffers was informed by some of the plaintiffs that they either had formed or were about to form a copartnership, and desired the store to carry on the cloak business, and that it was designed to use the store for that business. The circuit court held that the plaintiffs were entitled to maintain the suit, and directed a verdict for them. From this judgment the defendant appeals. The court excluded from the consideration of the jury certain elements of damage, from which ruling the plaintiffs appeal.

Was parol evidence permissible to vary the terms of the written contract? The lease was under seal, and it is contended in behalf of the defendant that in contracts under seal none but the parties to them can sue or be sued. It is unnecessary to determine this question, since we are of the opinion that the rights of the parties in this case are the same whether we regard it as a contract of specialty, or one not requiring a seal, and as, therefore, coming under those decisions which hold that the seal may be treated as surplusage. This is not a case where an undisclosed principal is suing or being sued, nor of false representation or suppression of facts. The entire situation was known to the parties, and with full knowledge of ,all the facts they deliberately made the contract. In terms it binds only Burwitz and Jeffers as principals. It binds Strauss and Cooper as sureties, and does not bind G-lick at all. It is now sought to change the contract of surety-ship into another and different contract, and to make one who was intentionally omitted a party to it. Could Jeffers hold Glick as a principal upon this lease, after he had ■expressly refused to make a lease with him? Mr. Jeffers had the right to make a lease with whom he pleased. If he had refused to make a lease with the plaintiffs, or either of them, and had said to them, “I will lease the store to A. B., and if he chooses to let you occupy it he may,” and the lease were made to A. B., could Jeffers have sued the plaintiffs for the rent? Or could he have sued A. B. and plaintiffs jointly? To so hold would be to make a contract which the parties themselves did not make, and which one of them expressly refused to make. Jeffers •chose to deal with Burwitz as an individual, and not with the firm to which he belonged. We are not concerned with his reasons for so doing. Mr. Burwitz chose to so deal with Jeffers, and his reasons for so doing are immaterial. Courts cannot substitute another contract for the cne they made, and force contract relations upon a party who had expressly refused to enter into them. Adair v. Adair, 5 Mich. 204; Jones v. Phelps, 5 Id. 218; First National Bank v. Bennett, 33 Id. 520; Coots v. Farnsworth, 61 Id. 497; Jacobs v. Miller, 50 Id. 119. We think these decisions control the present case. This holding is not in conflict with the many decisions involving the rights and liabilities of undisclosed principals.

This disposal of the case renders it unnecessary to discuss the question of damages.

The judgment against the defendant must be reversed, and judgment entered for him, with the costs of both courts.

The other Justices concurred.

       See Blagborne v. Hunger, 101 Mich. 375.


author:
Hooker, J.
      Montgomery, J.

text:
    Adolph A. Pinet v. Charles Montague and Lewis Van Winkle.

      Contract of employment — Discharge of employe — Evidence—Damages — Practice in circuit court.

    1. Where, during the argument of a case to the jury, exception is taken by the opposing counsel to a statement that there is evidence of a certain fact, it is proper for the attorney, in defense of his position, to challenge the attention of the court to the particular evidence which he claims he referred to in his argument. ,
    2. In a suit by a lumber inspector to recover damages alleged to have been sustained by reason of being wrongfully prevented from performing his contract for measuring and inspecting a season's cut of lumber for the defendant, the plaintiff was allowed to recover for the amount of lumber sawed during the season at the agreed price for measurement and inspection, less what he had received pay for, and less the sum of $200, which he testified it would have cost him to inspect the rest of the lumber. Objection was made that this was not the proper measure of damages, for the reason that the plaintiff’s personal presence would have been required, for the remainder of the season, and that he was shown to have done other work, which should be considered in reduction of damages. The amount of plaintiff’s earnings was not shown, nor did it appear that he received any pay for work performed during the remainder of the season. And it is held that the burden was upon the defendant to show said facts; citing Farrell v. School-District, 98 Mich. 47.
    3. A lumber inspector contracted to measure and inspect a season’s cut of lumber at an agreed price per thousand feet. After entering upon the performance of his contract, he asked for leave of absence for a few days, and offered to have his brother take his place. His request was granted, with the understanding that he should be telegraphed for when wanted, and he was paid for the services already performed. The contractees, owing, as they claimed, to the dissatisfaction of one of their customers with the inspector’s measurements, desired to terminate the contract, and to that end negotiated with the inspector by letter, and in one letter stated that they thought the inspector had better call his man (who had meas■ured some of the lumber) home, and quit. The inspector, in reply, sent a formal offer of compromise, after which he offered by letter to perform the contract, and threatened suit if not permitted to do so, to which the contractees replied that they had done the best they could for the inspector, and intimated that he could bring the threatened suit if he thought best to do so. And it is held:
    a — That the desire on the part of the contractees, as evidenced by their letters, to terminate the contract, coupled with the negotiations with the contractor to that end, did not amount to an infringement of his rights under his contract.
    b — That the statement by the contractees in their letter that the contractor had better call his man home, and quit, was not equivalent to a refusal on their part to carry out the contract, but that it justified the contractor in writing the letter tendering his services in performance of the contract, and that, as said offer terminated the negotiations, the jury might consistently find, from the time of its reception, a refusal by the contractees to perform the contract.
    Error to Saginaw. (Wilber, J.)
    Argued November 21 and 22, 1894.
    Decided January 4, 1895.

      Assumpsit. Defendants bring error.
    Affirmed.
    The facts are stated in the opinion.

      Humphrey é Grant, for appellants.

      Weacloch & Purcell, for plaintiff.
   Hooker, J.

The parties to this action made the following written contract:

" Van’s Harbor, Mich., January 27, 1891.

"Articles of agreement made this day between Van Winkle & Montague and A. A. Pinet, as follows: A. A. Pinet will measure and inspect all the lumber manufactured by Van Winkle & Montague in the summer or year of 1891 for 12£ cents per M. feet. The greater part of said lumber to be straight measure. Pinet to measure the lumber so as to detain vessels as little as possible. Van Winkle & Montague to pay above price, and pile the lumber so as to make the measuring as convenient as possible.

"Van Winkle & Montague.

" A. A. Pinet.”

Pinet brought the action, alleging a breach of the contract by the defendants, in preventing him from measuring the lumber. A question arose upon the construction of the contract, defendants contending that it required the personal services of the plaintiff, and the court instructed the jury that it required his personal supervision. On August 6 the plaintiff left, and never returned. The parties do not agree about the circumstances under which he went, the plaintiff stating that he asked for a leave of absence for a few days to go to Saginaw, saying that he would have his brother take his place, when defendant Yan Winkle replied:

“ You needn't go to that expense. I must either lose you or Hilte [a customer of defendants', who was dissatisfied with plaintiff's measurement], and I cannot afford to lose Hilte, for he advances me money, from $3,000 to $5,000, when I don’t ask it; and these hard times it is better not to lose him, and, rather than lose him, you may go to Saginaw, and I will telegraph you when I want you, and let George Eobinson [an employé of plaintiff] measure what he can, and, in case you don't get back in time, I will let the balance of the lumber be measured at Milwaukee.”

The defendants assert that, according to plaintiff’s theory of the case, he said that he was going for four or five days, and the arrangement was that, if he was wanted within that time, he should be written or telegraphed for.

Yan Winkle testified that he only consented to plaintiff's going conditionally, and that he must be back before the boats returned, and that he was not back. This was the first time he went. Witness continued:

“The next time he went away was August 6. -I didn't consent to his going. He said he was going to Saginaw, but didn't say when he was coming back. I made no arrangements with Pinet to telegraph him when I wanted him.”

On cross-examination he said:

“ When Pinet first began to talk about leaving, in August, he stated that he could get his brother Fred to come up and take his place temporarily, and that Fred wás a competent inspector, or something like that. I said I didn't think it was necessary; that I would wait until he returned, or something like that. I am positive that I did not say anything about telegraphing him when he was. required back. I ■ expected him to return August 6, when he went away, with a competent man to measure-this lumber. * * * I only consented to his going away until the Wyman [a boat] came back. I expected her in three or four days. I didn't expect him back in-time to load her for the next trip. At the time Pinet went away, I preferred him to measure the lumber to any other man.”

According to the testimony of both parties, the defendants did not discharge the plaintiff, or refuse to permit him to perform the contract, on August 6. According to the plaintiff's testimony, he requested permission to go, and was informed that, in view of Hilte's dissatisfaction, he might go, and that he would be telegraphed for when wanted. Bobinson remained on the ground, and measured some lumber, being still in the plaintiff's employ. AIL agree that the plaintiff was paid up to the time he left, and that he was never asked to return, by letter or otherwise. We think that the testimony shows that the plaintiff was merely granted a leave of absence at that time. We must therefore look upon his absence as a matter of mutual assent, and conclude that he would not be entitled to claim damages unless something further occurred amounting to a breach of the contract by the defendants.

This brings us to the correspondence. It began by a letter dated August 6, the day that the plaintiff left. One of the defendants testified that he thought it was written after he left. At all events, it was not seen by the plaintiff until it reached him, by due course of mail, in Saginaw. It therefore did not affect their agreement of August 6. It may be thought to show a reason for the defendants’ consent, and may have influenced the jury in. deciding whose version of the transaction of August 6 to believe, but it cannot be said to have changed or affected the arrangement actually made. This letter of August 6 mentions Hilte’s dissatisfaction; states that the defendants could not afford to drop Hilte just then; and adds: “So, if you feel like it, drop the job where it is;” and, again: “ Maybe the best thing for you and I both is for you to quit the job. Let me hear from you.” The plaintiff ■wrote a letter dated August 11 in answer to that of August 6. He said, in substance, that he would throw up the job if he could afford to. He proposed to measure all but the Hilte lumber, and keep Eobinson there, defendants to allow him something for the lumber that should go to Hilte. The defendants replied upon August 13, complaining of bad measurements, and stating that it nearly all occurred by plaintiff’s leaving his men and going away, and concluded by saying, “I think now you better ■call your man home, and quit.” On August 17 the plaintiff answered, denying that the defendants had a right to ■find fault, and stating that he was willing to fill his contract to the letter, but offering to throw up the contract upon a compromise therein suggested. On August 19 the defendants replied, saying that Eobinson was there, but uot measuring anything; that he had been sick for a few flays; that they would not ship any more lumber without measuring; and that they had written for a man to come and measure a load or two. If this letter was answered, it was not shown; and on September 5 the plaintiff wrote to the defendants, to tender his performance of the contract, and threatening suit if he should not be permitted to do ,so. On September 10 the defendants wrote, saying that they had done the best they could for the plaintiff, and intimating that he could bring the threatened suit if he thought best. The action was then brought.

The court permitted the jury to determine that the defendants violated the contract, and of this counsel for the defendants complain, their brief stating:

The main question is as to whether or not Pinet can recover what he claims would have been his profits in measuring all of the balance of the lumber manufactured at Van’s Harbor by staying in Saginaw, and simply writing a letter to the defendants, notifying them that he was ready and willing to perform his contract to the letter, but doing nothing himself in the way of performance, ■except writing the letter.”

We are of the opinion that the letters show that the ■defendants desired to terminate the contract, and that they negotiated with the plaintiff to that end. Such desire and negotiation was not an infringement of the plaintiff’s rights, however. Nothing shows that he was prohibited from returning to his work had he chosen to do so, or that the defendants would have prevented his measuring the lumber, or refused to pay him for his work. The plaintiff’s counsel lay great stress upon the expression used in the letter of August 13, I think now you better call your man home, and quit,” claiming that this was equivalent' to a refusal to carry out the agreement. It was not in our view of the correspondence, and it does not seem to have been so treated by the plaintiff, for he afterwards sent a formal proposition for compromise, and subsequently a tender of his services. We think that this was prudent, and that he could not have relied upon that expression as a breach of the contract, but we also think it justified him in writing the letter wherein he tendered his services, and expecting a reply, and that all the correspondence and circumstances, if the plaintiff’s version was believed, justified the jury in finding a refusal on the part of the defendants to permit the plaintiff to measure more lumber, without requiring him to make a trip of 300 or 400 miles to make the offer, when the defendants had (according to his version) promised to let him know when they wanted him, and had expressly said they would like to have him quit. His offer terminated the negotiations, and, from the time of its reception, the jury might consistently find a refusal by the defendants to perform their undertaking. The circuit judge instructed the jury that they might ascertain the defendants' intention in writing to the plaintiff that he had better quit the job, and that if they should find that they intended it as a discharge, and that the plaintiff had a right so to consider it, then they might consider that he was discharged thereby; and it is apparent that they did so find. We have already intimated that the letter was not susceptible of that construction, but the verdict shows that the jury must have believed the plaintiff's version of the matter; and, if so, it follows that what occurred after the letter of August 13 (all of which is in writing) did amount to a discharge of the plaintiff, and the jury must necessarily have so found had they reached that question. It is unimportant, therefore, that they base their verdict on a discharge at that particular time, instead of later, nnless it appears that the defendants were injured thereby.

This brings us to the question of damages. The plaintiff was allowed to recover for the amount of lumber sawed during the season at the agreed price, less what he had received pay for, and less the sum of $200, which he testified it would have cost him to inspect the lumber; i. e., that he could have done it himself at that cost. Counsel for the defendants raise the question that this was not the proper measure of damages, for the reason that the plaintiff's personal presence would have been required for the rest of the season, and that he was shown to have done other work, which should have been considered in reduction of the damages. Hndoubtedly, this is the true rule, but we find no evidence that he earned anything, except as it may be inferred from the testimony of the plaintiff, who said he measured two or three boat loads of lumber at Baraga, at least one of which was for his brother. It does not appear that he received any pay for work, or could have done so; and counsel for defendants do not seem to have cared to examine him in relation to the subject. Defendants’ tenth request shows that the amount of his earnings was not shown. The burden was upon the defendants to show the fact. Farrell v. School-District, 98 Mich. 47.

The following occurred upon argument to the jury:

“Mr. Humphrey: I take exception to the statement of Mr. Weadock that there is evidence that he gave him notice to quit.

“Mr. Weadock: We want to show now that the letter of August 13, in letter and in fact, tells Mr. Pinet he must quit his job. Mr. Pinet was ready and willing to do this work.

“Mr. Humphrey: I take exception to that remark, as there is no evidence in this case. The evidence shows that Mr. Pinet, a part of the time, was at work in Baraga, and could not have been there, and we don’t know how much of the time.”

Upon this, error is assigned as follows:

“The court erred in permitting plaintiff’s counsel to argue to the jury that the plaintiff was discharged from his employment by the letter of August 13, introduced in evidence in this case,”

The record does not show that he had so argued to the jury, unless it is to be inferred from the foregoing statement to the court, which was proper for him to make in defense of his position. The ruling of the court upon it, if there was one, is not given.

' Other exceptions were taken to the claims of counsel made in argument, but we cannot say that counsel’s arguments must strictly accord with his client’s rights.

We find nothing in these points that would justify a reversal of the judgment, which will therefore be affirmed.

McGrath, 0. J., Long and Grant, JJ., concurred with Hooker, J.

Montgomery, J.

The facts are sufficiently stated in the opinion of Mr. Justice Hooker. I concur in the opinion that there was evidence showing a discharge of the plaintiff.

Complaint is made of the instructions relative to the measure of damages. The circuit judge charged the jury that the plaintiff was entitled to recover the contract price for scaling the balance of the lumber unsealed, less what it would cost him to do the work. It appeared by defendants5 own testimony that there were 18,125,507 feet manufactured. Of this 8,000,000 feet were scaled prior to the discharge, leaving 10,125,507 feet. But there was testimony tending to show that while plaintiff was absent, with the consent of the defendants, the man left in charge was taken sick, and unable to scale, so that two cargoes were scaled by other parties, amounting to 500,000 feet, leaving 9,625,507 feet. This, at the contract price, would have amounted to $1,203.19, as the amount of compensation. But the verdict of the jury, exclusive of interest, was $765, or $238.19 less than the undisputed testimony showed the plaintiff entitled to recover, unless some allowance should be made for, other earnings of the plaintiff. The defendants contend that the plaintiff’s testimony showed that he secured other work during the time that he would have been required to give his attention to the work of the defendants if he had not been discharged. It is true his testimony shows that he measured two or three cargoes, but the defendants failed to show the amount of the lumber measured by him. But, if it be assumed that the cargoes were of the largest size of any shown by the testimony in this case to have been shipped, the price would amount to much less than the allowance which the jury evidently made on this account. There was no error to the prejudice of the defendants.