text:
    WEST v. BECHTEL.
    Contracts — Sale—Delivery of Installment — Default in Payment— Refusal of Further Delivery — Damages.
    Defendant contracted to deliver a quantity of wood to plaintiffs. Instead of paying for every car load on delivery, as stipulated in the contract, plaintiffs paid for the first on the arrival of the second, and for the second on the arrival of the third, when defendant refused to make further deliveries. There was nothing in plaintiffs’ conduct indicating a design not to perform their part of the contract, and they demanded delivery of the remainder. Held, that plaintiffs’ mere refusal to pay for the third car load until more was delivered was not such a breach of the contract as would warrant defendant in repudiating the entire contract, and he was, therefore, liable in damages for nonperformance.
    Error to Kent; Grove, J.
    Submitted May 1, 1900.
    Decided November 13, 1900.

      Assumpsit by Ben E. "West and Judson C. West, copartners as B. E. West & Co., against Charles J. Bechtel, for the breach of a contract to deliver wood. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed.

      M. L. Dunham, for appellant.

      Hatch & Wilson, for appellees.
   Hooker, J.

Plaintiffs are coal and wood dealers in Grand Bapids, and the defendant is a dealer in wood at Mantón, Mich. The former offered to purchase 400 cords of wood at one dollar per cord, f. o. b. car at Man-ton, from the latter, if he would ship “right away,” promising to remit as fast as the wood should “ come in.” The offer was accepted. Both offer and acceptance were by letter, the acceptance being dated January 14, 1899. Three cars were shipped, and two were paid for. On February 7, 1899, plaintiffs wrote, asking that wood be shipped faster, stating that they needed the wood. February 22, 1899, the S. P. Bennett Fuel & Ice Company, of Grand Bapids, wrote defendant, inquiring for wood, and offering to buy. February 24, 1899, plaintiffs wrote, saying that, “Your conversation over telephone day before yesterday (22d) confirms our idea that you did not intend to fill contract,” adding that, though price had materially advanced, they should expect the wood, and would be seriously damaged if he did not ship it. On February 27, 1899, defendant wrote the S. P. Bennett Fuel & Ice Company, offering some.wood at $1.40 per cord. February 28, 1899, defendant replied to the plaintiffs, saying that the plaintiffs had agreed to pay for wood as fast as it came in, and that he had shipped a car February 4th, which, on February 21st, they admitted that they had received two weeks before, but had not paid for, and concluding with a threat to sue if he did not receive his pay. On March 2, 1899, the Bennett Company wrote defendant to ship three cars of wood at $1.40 per cord, adding that it must be seasoned. March 7, 1899, defendant wrote said company that it was not very dry, but was going fast at $1.40, and asked to know at once if it was wanted. It purchased some wood of him. There was testimony tending to show that in the talk by telephone the defendant said to plaintiffs: “You have not paid for the last you got. When are you going to pay for that ? ” and that plaintiffs replied, “We will pay for that when we get some more.” The defendant testified that plaintiffs said that “they should not pay for it until they got some more,” and he replied that they would have to pay for it before they got any. The action was brought by the purchasers to recover damages for a breach of their contract. They also garnished the S. P. Bennett Fuel & Ice Company, which was owing the defendant $100.85. In the justice’s court plaintiffs recovered a judgment of $82.80 and costs. The defendant appealed, and in the circuit plaintiffs obtained a judgment for $8.55, and they were allowed full costs.

The circuit judge instructed the jury that:

“Here was a contract whereby the defendant had agreed to deliver a certain quantity of wood right away on board cars up there, and the plaintiffs had agreed to pay for it as fast as the wood came in. The plaintiffs claim that the wood was not being delivered right away; that it was coming several days apart; coming too slow. They claim that they were not satisfied with the way it was being delivered, and that they anticipated, on account of the rise, they might have some trouble. They therefore withheld the pay. Instead of paying for every car load as quick as it came, they paid for the first car load after the second arrived, and the second after the third arrived, and so on, intending fully to pay up when they should receive the wood.
“A contract of this character might be broken up by either party. A refusal to pay — nonpayment according to the terms of the agreement — might, under certain circumstances, constitute such a breach of the contract as would release the other party, and a refusal to deliver might be such a breach of the contract on the part of the defendant as would release the other party, or give him a cause of action. But the particular circumstances connected with the case ought to be taken into consideration. The mere refusal to pay for a portion of the property delivered until more was received would not alone constitute such a breach of the contract as would warrant the other party, the defendant, in repudiating the entire contract, but, to warrant the defendant in refusing further to perform his part of the contract by delivering the wood which he had contracted to deliver, it ought to be made to appear that there was not merely a refusal to pay at once for the portion already delivered, but the circumstances connected with the whole matter, the conduct of both parties, ought to be taken into consideration, and it should be made to appear, to warrant the defendant in refusing further to deliver, that the conduct of the plaintiffs was such as indicated that they did not intend to perform their part of the contract. I do not think, gentlemen of the jury, that the evidence in this case is sufficient to warrant a finding upon your part that there was such a breach of the contract on the part'of the plaintiffs that would justify the defendant in refusing to further perform his contract; and therefore the only questions for you to determine in this case are whether or not the plaintiffs have lost anything on account of the advance in the price —the market price — of wood after the refusal to deliver by the defendant, and, if so, how much have they lost; in other words, what has that advance been ? ”

Error is assigned upon this, and it is the only important question in the case.

Counsel for the plaintiffs cite several' cases in support of the proposition that a mere default in payment of installments is not to be treated as an abandonment of the contract. Among the early cases which recognize the difference between covenants which are precedent and those which are not is Boone v. Eyre, B. R. East, 17 Geo. III. (1 H. Bl. 273, note a). In that case the plaintiff conveyed a plantation in the West Indies, with the stock of negroes upon it, in consideration of an annuity, and covenanted that he had a good title to the former and was lawfully possessed of the latter. In an action for the nonpayment of the annuity, a plea was filed alleging that the plaintiff was not, at the time of making the deed, lawfully possessed of the negroes, and so had not a good title to convey. The plaintiff demurred to the plea. Lord Mansfield said:

‘ ‘ The distinction is very clear: Where mutual covenants go to the whole of • the consideration on both sides, they are mutual conditions, the one precedent to the other; but where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent. If this plea were to be allowed, any one negro not being the property of the plaintiff would bar the action.”

Judgment was given for the plaintiff.

The case of Boone v. Eyre was commented on by Lord Loughborough in the case of Duke of St. Albans v. Shore, 1 H. Bl. 270, 278. In the latter case the parties were to exchange lands described at prices agreed upon. It was further agreed that :

“All timber trees, elms, and willow trees which then were upon any of the above estates to be fairly valued by two appraisers, and the prices or values thereof to be paid by the respective purchasers of the estates at the time-before mentioned.”

The defendant refused to perform, and, in an action for a breach of the contract, filed a plea that the plaintiff, after making the agreement, cut down and destroyed 500 timber trees, 500 elms, and 500 willow trees upon the estate, thereby making it impossible for him to perform his contract. A general demurrer was filed by the nlaintiff. Lord Loughborough said:

“It is clear in this case that, unless the plaintiff has done all that was incumbent on him to do in order to create a performance by the defendant (if I may use the expression), he is not entitled to maintain the action.. If he has not set forth a sufficient title, judgment must be against him, whatever the plea is; and, if the plea be a good bar, the same consequence must follow. It was argued on the part of the plaintiff that the agreement respecting the trees was not a condition precedent, and therefore a breach of that agreement could not be pleaded in bar of the action. In support of this argument the case of Boone v. Eyre was cited; but in that case, though the court of king’s bench held the plea insufficient, yet they laid- down a clear and well-founded distinction, — that, where a covenant went to the whole of the consideration on both sides, there it was a condition precedent, but where it did not go to the whole, but only to a part, there it was not a condition precedent, and each party must resort to his separate remedy; and for this plain and obvious reason: Because the damages might be unequal. The cases, also, of Hunlocke v. Blacklowe, 2 Saund. 156, and Cole v. Shallet, 3 Lev. 41, were cited as being in favor of the plaintiff. But it is unnecessary to enter into the discussion of those cases, though perhaps doubts may reasonably be entertained of the doctrine laid down in Saunders, and though the case cited by him in his argument may deserve full as much consideration as that which was the subject of the determination of the court; for we found our opinion on the present case on the ground of the distinction in Boone v. Eyre, which we think a fair and sound one. Then the question is whether the covenant of the plaintiff goes to the whole consideration of that which was to be done by the defendant. Now, the duke clearly covenanted to convey an estate to the defendant, in which all the timber growing on the estate was necessarily included. The timber was not disjoined from the estate by the separate valuation of it. ' It was expressly agreed that all trees, etc., which then were upon any of the estates should be valued. But it is not to be permitted to a party contracting to convey land, which includes the timber, by his own act to change the nature of it between the time of entering into the contract and that of performing it. There may be cases where the timber growing on an estate is the chief inducement to a purchase of that estate. But it is not necessary to inquire whether it be the chief inducement to a purchase or not, for, if it may be in any sort a consideration to the party purchasing to have the timber, the party selling ought not to be permitted to alter the estate by cutting down any of it. This is not an action of covenant, where one party has performed his part, but is brought for a penalty on the other party refusing to execute a contract. But, to entitle the party bringing the action to a penalty, he ought punctually, exactly, and literally to complete his part. We are therefore of opinion that the plea is. a good bar to the action, and on this we give our judgment.”

This case was decided in 1789. The question was again raised in 1836, in the case of Franklin v. Miller, 4 Adol. & E. 599. The defendant, being indebted to divers persons, made an agreement to pay to the plaintiff the full amount of all accounts paid for the defendant by him, with the expense, and a salary of £40 per quarter until said debts should be fully settled. The plaintiff promised to perform such service, and expended time and money in so doing; and, payment being refused when due, he sued for a breach of contract. The defendant’s plea alleged a failure to perform upon the part of plaintiff, in that he did not pay and settle all of the accounts that he might have done had he used diligence. Plaintiff replied, in substance, that the failure of defendant to pay justified his nonperformance and a rescission of the contract, and to this the defendant demurred. Littledale, J., said:

“With respect to the plea the plaintiff may say, ‘Assuming that there has been a default made as to my part of the contract, it is only a partial breach, and the defendant’s argument would go the length of insisting that, if I had in any one week omitted to pay the sovereign, he might put an end to the contract, and deprive me of all the money I have paid in advance; for he states that he has rescinded the agreement altogether.’ It is a clearly recognized principle that, if there is only a partial failure of performance by one party to a contract, for which there may be a compensation in damages, the contract is not put an end to.”

This was based on Boone v. Eyre, which case the learned judge quoted at length, and he concluded with the statement that:

“So here it cannot be contended that, if in any one week the sovereign had been unpaid, that default would put an end to a contract made up of several stipulations, some of which have been executed. ”

Coleridge, J., said:

“I think both the replication and the plea bad. The plea is not good unless one party to a contract like this may treat it as rescinded if the other fails in the slightest degree to perform his part of it. The rule is that in rescinding, as in making, a contract, both parties must concur. In Withers v. Reynolds, 2 Barn. & Adol. 882, each load of straw was to be paid for on delivery. When the plaintiff said that he would not pay for the loads on delivery, that was a total failure, and the defendant was no longer bound to deliver. In such a case it may be taken that the party refusing has abandoned the contract. The present case is different, and the plaintiff is entitled to judgment.”

In Fillieul v. Armstrong, 7 Adol. & E. 557 (decided in 1837), the defendant discharged one whom he had employed to teach French. In an action for breach of the contract, defendant pleaded that plaintiff was absent for two days beyond the time fixed by defendant for plaintiff’s vacation. Upon demurrer to the plea the court held that, while the defendant might be entitled to sue the plaintiff for absenting himself, such absence did not put an end to the contract.

In Freeman v. Taylor, 8 Bing. 124 (decided in 1831), the plaintiff chartered to the defendant a ship to go from London to Madeira and Cape of Good Hope, and thence to Bombay and back. Action was brought for damages against the defendant for not loading the ship with a cargo at Bombay. Upon the trial it appeared that the captain made a deviation to the Island of Mauritius, and defendant’s agents at Bombay, in consequence of such deviation, refused to find a cargo. It was left to the jury to say whether the deviation was of such a nature as to deprive defendant of the benefit of his contract, and this was held proper. See, also, Mount v. Larkins, 8 Bing. 108.

The case of Freeth v. Burr, L. R. 9 C. P. 208 (1874), was in some respects quite similar to the present case. Defendant contracted to sell 250 tons of pig iron at a fixed price, one-half to be delivered in two and the remainder in four weeks, payment net cash fourteen days after delivery of each parcel. The market was rising, and, notwithstanding urgent demands by plaintiffs, the delivery of the first 125 tons was not completed for nearly six months. The plaintiffs refused to pay for it, claiming a right to set off the loss, but still urged the delivery of the remainder. The defendant treated the refusal to pay as a breach and abandonment of the contract, and declined to deliver more. It was held that the mere refusal to pay did not warrant defendant in treating the contract as abandoned. Coleridge, C. J., laid down the rule as follows:

“ The question is whether the fact of the plaintiffs’ refusal to pay for the 125 tons delivered was such a refusal on the part of the purchasers to. comply with their part of the contract as to set the seller free, and to justify his refusal to continue to perform it. This certainly appears, viz., that there was an extension by mutual consent of the time for the delivery of the iron from December, 1871, to May, 1872, with constant pressure on the one side and excuses and resistance on the other. I mention that because it is important to express my view that in cases of this sort, where the question is whether the one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do or do not amount to an intimation of an intention to abandon and altogether to refuse performance of the contract. I say this in order to explain the ground upon which I think the decisions in these cases must rest. There has been some conflict amongst them; but I think it may be taken that the fair result of them is as I have stated, viz., that the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract. Now, nonpayment on the one hand, or nondelivery on the other, may amount to such an act, or may be evidence for a jury of an intention wholly to abandon the contract, and. set the other party free. That is the true principle on which Hoare v. Rennie, 5 Hurl. & N. 19, 29 Law J. Exch. 73, was decided, — whether rightly or not, upon the facts, I will not presume to say. Where, by the nondelivery of part of the thing contracted for, the whole object of the .contract is frustrated, the party making default renounces on his part all the obligations of the contract. That is the ground upon which it is said in Jonassohn v. Young, 1 Best & S. 296, 32 Law J. Q. B. 385, that that case may be supported. In Withers v. Reynolds, 2 Barn. & Adol. 882, there was an express refusal by the plaintiff to perform the contract; and Patteson, J., says: ‘If the plaintiff had merely failed to pay for any particular load, that of itself might not have been an excuse to the defendant for delivering no more straw; but the plaintiff here expressly refuses to pay for the loads as delivered. The defendant, therefore, is not liable for ceasing to perform his part of the contract.’ Wightman, J., certainly, and Crompton, J., by inference, in Jonassohn v. Young, 4 Best & S. 299, both uphold, that case upon the principle on which I rely. The principle to be applied in these cases is whether the nondelivery or the nonpayment amounts to an abandonment of the contract, or a refusal to perform it, on the part of the person so making default. That,being so, and my Brother Brett having ruled that the mere nonpayment for the first portion of the iron contracted for, unattended by any other act on the part of the purchasers, did not put an end to the contract so as to disentitle the purchasers to maintain an action for the nondelivery of the second portion, but only gave the seller a remedy by cross action (of which he has availed himself)., I am of opinion that his ruling was correct, and that the rule should be discharged.”

Keating, J., concurring, said:

“ It is not a mere refusal or omission of one of the contracting parties to do something which he ought to do that will justify the other in repudiating the contract, but there must be an absolute refusal to perform his part of the contract. Nonpayment is an element. But, looking at all the circumstances of this case, — a rising market, a failure on the part of the defendant to deliver the iron according to the terms of the contract, a series of deliveries in small quantities long after the times for delivery provided for by the contract, and a refusal on the part of the plaintiffs to pay for the iron delivered, not only accompanied by remonstrances, but with a requisition to the seller to fix a day for the delivery of a certain quantity,— I do not think they show an intention on the part of the plaintiffs to abandon the contract. As, upon the facts, there appears to have been not only no absolute refusal to perform the contract by the plaintiffs, and — what is important — no evidence of inability on their part to perform it, I think the defendant had no right to treat the contract as rescinded, and to refuse to deliver the remainder of the iron.” '

Denman, J., also said:

“I am of the same opinion. The learned judge ruled that the mere refusal by the plaintiffs to pay for the portion of the iron delivered did not warrant the defendant in considering the contract as at an end; and he gave the defendant leave to move to enter a verdict or a nonsuit if the court should think that ruling wrong. I am of opinion, upon the authority of Withers v. Reynolds, 2 Barn. & Adol. 882, that the ruling was quite right. That case did not decide expressly that a mere failure of a single payment might not be evidence of a refusal to perform the contract; but, in the words of Patteson, J., the conduct of the plaintiff, coupled with the nonpayment, amounted to an express refusal to perform the contract on his part. There was nothing of the sort here. After the way in which that case has been treated in subsequent authorities, I think we are bound to hold it to be a correct statement of the law, and to act upon it. Notwithstanding the plaintiffs’ refusal to pay, the defendant was bound to go on and deliver the rest of the iron.”

The case of Mersey Steel & Iron Co. v. Naylor, 9 Q. B. Div. 648, 9 App. Cas. 434, decided in 1882 and 1884, contains extended discussion upon this subject by several eminent English judges. The defendants agreed to purchase from the M. Co. a quantity of steel, to be delivered on board ship in five monthly installments, payment to be made within three days after receiving shipping documents. The company delivered about half of the first installment, but, before payment became due, a petition was presented to wind up the company. The defendants were erroneously advised that they could not safely pay the company without an order of court. The company gave notice that it should treat the refusal to pay as releasing it from any further obligation. No further iron was delivered, and an action was brought to recover the price of what had been delivered. The defendants set up a counterclaim for damages for nondelivery. The court of queen’s bench held, reversing Coleridge, C. J., that the defendants had not, by postponing payment under the erroneous advice of their solicitor, so shown an intention no longer to be bound by the contract as to release the plaintiffs from further performance of it, and that the plaintiffs were liable for damages occasioned by the nondelivery. Jessel, M. R., said:

“This appeal raises two points, one of which is of very great importance. The first question is, What is the rule which is to prevail as regards the getting rid of the liability to the further performance, or to the performance, of a contract, in consequence of the acts or defaults of the other party in respect of that contract ? If one party breaks a contract, is the other party bound to perform his part of it or not ? There is no absolute rule which can be laid down in express terms as to whether a breach of contract on the one side has exonerated the other from performance of his part of the contract; but I think the rule of law is properly stated in Freeth v. Burr, L. R. 9 C. P. 208, and it is stated in a very few words by the judge from whose decision this appeal comes. He says:
“ ‘ I say this in order to explain the ground upon which I think the decisions in these cases must rest. There has been some conflict amongst them; but I think it may be taken that the fair result of them is as I have stated, namely, that the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract.’
“That makes it a question of evidence. You must consider the nature of the breach, the circumstances under which the breach occurred, and then see whether that is the result of it. There may, indeed, be a case where one party says in so many words that he does not intend to go on with the contract; but generally you must infer the intention from the acts of the parties. Then he goes on:
' ‘ ‘ Now, nonpayment on the one hand, or nondelivery on the other, may amount to such an act, or may be evidence for a jury of an intention wholly to abandon the contract, and set the other party free.’
“If you have the act so done on the one side, the other party, if he elects to be free, is no longer liable to perform his part of the contract. Now, in Freeth v. Burr, L. R. 9 C. P. 208, and the other cases on the subject, no such distinction is taken as is referred to by Lord Bramwell, if I rightly read his judgment, in Honck v. Muller, 7 Q. B. Div. 92, between the case of a contract partly performed and a contract never performed at all. In Freeth v. Burr there had been part performance. In the Case of Phœnix Bessemer Steel Co., 4 Ch. Div. 108, the point was not argued. That was an action founded on a contract for selling goods on credit. The vendors had said, ‘ We will not sell you the goods any more except for cash.’ The other side said, ‘ But we are entitled to credit, and, if you will not sell them to us except for cash, we will not take them at all, and there shall be an end of it.’ The only point argued was whether the persons who were entitled to the credit were insolvent in such a way and to such an extent that the vendors had a right to say, ‘ We will not sell except for cash.’ That was the only point argued. Nobody argued that upon the refusal of the vendors to sell without cash, and when the answer is, ‘ We must decline to take the iron,’ the vendors were released from the contract. I held that they were not when the. case came originally before me at the rolls, and the court of appeal affirmed that decision. That was the case of a contract which had been part performed to a very considerable extent. So, again, in Withers v. Reynolds, 2 Barn. & Adol. 882, the contract had been partly performed. The notion, therefore, that there is any difference in this respect between a contract part performed and a contract not performed at all, is not, I think, well founded. I am not sure that I am right in supposing that Lord Bramwell, in Honck v. Muller, 7 Q. B. Div. 92, intended to say that in no case where the contract was part performed could one party rely on the refusal of the other to go on, although that seems to me to be the fair construction of his judgment. Again, in Simpson v. Crippin, L. R. 8 Q. B. 14, no such distinction was taken. Hoare v. Rennie, 5 Hurl. & N. 19, was on demurrer, which the judges seem' to have forgotten, and to have treated it as a special case, and drawn inferences of' fact. That being so, the only point we have to consider is whether the evidence in this case ought to lead us to the conclusion that the buyers refused to go on with the contract.”

Lindley, L. J., concurred, saying:

“The first question is whether the defendants are entitled, apart from any question of set-off, to any damages by reason of the breach by the plaintiffs of a contract on their part. Lord Coleridge held that they were not, on the ground that there had been such a refusal to perform the contract as to amount to a rescission of it. Whether there was such a refusal depends entirely on the correspondence. The view which the lord chief justice took of it is stated in these words:
“ ‘ Here the defendants, while insisting on future deliveries, positively refused to pay for the iron already delivered, and for all which might subsequently he delivered, unless the plaintiffs fulfilled a condition which the defendants, in my opinion, had no right to impose:’
“Now, without pausing to remark on the terms in which that conclusion is expressed, I confess it appears to me that the correspondence does not bear that interpretation. The alleged refusal arose in this way: It appears that the advisers of the defendant company took a view which was untenable; that is to say, they took the view that the defendants could not properly pay certain money which they owed to the plaintiff company, by reason of the pendency of the petition to wind up the company. This view was taken under the impression that there was something in section 153 of the companies act of 1862 which rendered such a payment improper. It was overlooked that section 153 applies to dispositions by the company of its property, and not to payments to the company. The distinction is obvious, and not only obvious in the language of section 153, but there is a case — In re Barneds Banking Co., (Ex parte Contract Corp.) L. R. 3 Ch. App. 105 — in which it was held by Lord Cairns that a transfer of shares to a company which was being wound up was not within section 153, and exposed the company to calls with respect to the shares. The advice, therefore, was mistaken advice. However, it was given, and the consequence of that advice was that the defendants declined or refused (I will use that word for the moment) to pay what they owed. But they did not so decline or refuse as to warrant the inference which, according to the case of Freeth v. Burr, L. R. 9 C. P. 208, is necessary to disentitle them from insisting on the contract, — the inference, I mean, that they abandoned the contract, or repudiated it, and would not go on with it. The inference is quite the other way. The true inference to be drawn from the correspondence is that they were ready enough to pay, but felt embarrassed, and did not know how to pay. Whether they ought to have been embarrassed is quite another matter. Acting honestly, and having got the advice which they did, they felt embarrassed, and hesitated about paying. It was not such a refusal to pay as brings the case at all within the principle of Freeth v. Burr, L. R. 9 C. P. 208.
“Now, I certainly do not pretend to reconcile all the cases on this subject. I have tried in vain to reconcile Hoare v. Rennie, 5 Hurl. & N. 19, Simpson v. Crippin, L. R. 8 Q. B. 14, and Honck v. Muller, 7 Q. B. Div. 92. I can understand each case by itself, but there is very considerable difficulty in reconciling them. It is not, however, necessary to do that. What we have to do is to extract from the cases some intelligible principle by which to be guided; and it appears to me that the principle is stated accurately in Freeth v. Burr, L. R. 9 C. P. 208, by Lord Coleridge himself, in delivering his judgment in that case. What he says as to the result of the cases is, ‘ The true question is whether the acts and conduct of the parties evince an intention no longer to be bound by the contract.’ I think that is the fair way of testing each of these cases; and it appears to me that Lord Coleridge either lost sight of that in deciding this case, or drew an incorrect inference from the correspondence. Taking that as the true test, it appears to me that the true and fair construction of the important letters of the 10th of February, the 17th of February, and the 1st of March, is this: That the defendants refused, or declined, or hesitated to pay; not, as is stated in Freeth v. Burr, L. R. 9 C. P. 208, ‘evincing an intention no longer to be bound by the contract,’ but evincing a difficulty suggested to them by their solicitor; a difficulty which they did not see their way to get out of. ”

The comments of Lord Bowen are of especial interest with reference to the question of rescission, which is given prominence in some of the cases. He said:

“Nondelivery of a single parcel would not be necessarily, of course, sufficient to intimate that the person who does not deliver intends no longer to be bound; but I am far from saying that nondelivery of a single parcel might not in particular contracts, and under particular circumstances, be sufficient. So as to nonpayment. Nonpayment of itself is certainly not necessarily evidence of an intention no longer to be bound by the contract; but I do not say there might not be circumstances under which the court would be entitled to draw that inference from it. If Lord Bramwell, in Honck v. Muller, 7 Q. B. Div. 92, is to be understood as saying tha't the doctrine can no longer be applied when the contract has been part performed, it seems to me that his observation goes beyond what can be •supported; for, as the master of the rolls has pointed out, many of the cases where one party was allowed to treat the conduct of the other as putting an end to the contract were cases in which the contract had been part performed. A fallacy may possibly lurk in the use of the word ‘ rescission.’ It is perfectly true that a contract, as it is made by the joint will of two parties, can only be rescinded by the joint will of the two parties; but we are dealing here, not with the right of one party to rescind the contract, but with his right to treat a wrongful repudiation of the contract by the other party as a complete renunciation of it. With regard to Hoare v. Rennie, 5 Hurl. & N. 19, I think that the true explanation of that case is that the plea was a special plea, which set out various facts from which two different inferences might quite well be drawn, and, as one or the other is drawn, the decision would appear correct or the reverse.”

The case was affirmed in the house of lords. Lord Blackburn used the following language:

“As to the first point, I myself have no doubt that Withers v. Reynolds, 2 Barn. & Adol. 882, correctly lays down the law to this extent: That, where there is a contract which is to be performed in future, if one of the parties has said to the other in effect, ‘ If you go on and perform your side of the contract I will not perform mine ’ (in Withers v. Reynolds, 2 Barn. & Adol. 882, it was, ‘You may bring your straw, but I will not pay you upon delivery as under the contract I ought to do; I will always keep one bundle of straw in hand so as to have a check upon you ’), that, in effect, amounts to saying, ‘ I will not perform the contract.’ In that case the other party may say: ‘You have given me distinct notice that you will not perform the contract. I will not wait until you have broken it, but I will treat you as having put an end to the contract, and, if necessary, I will sue you for damages; but at all events I will not go on with the contract.’ That was settled in Hochster v. De La Tour, 2 El. & Bl. 678, in the queen’s bench, and has never been doubted since; because there is a breach of the contract, although the time indicated in the contract 'has not arrived. That is the law as laid down in Withers v. Reynolds, 2 Barn. & Adol. 882. That is, I will not say the only ground of defense, but a sufficient ground of defense. In Freeth v. Burr, L. B. 9 C. P. 208, it was also so laid down; and Lord Coleridge here thinks the facts were such as to bring the case within that principle. I will not, at this time of the day, go through them; but, when the facts are looked at, it is to me clear that that is not so. So far from the respondents saying that, when the iron was brought in future, they would not pay for it, they were always anxious to get it, and for a very good reason, — that the price had risen high above the contract price. There was a statement that, for reasons which they thought sufficient, they were not willing to pay for the iron at present; and if that statement had been an absolute refusal to pay, saying, ‘ Because we have power to do wrong we will refuse to pay the money that we ought to pay,’ I will not say that it might not have been evidence to go to the j ury for them to say whether it would not amount to a refusal to go on with the contract in future, for a man might reasonably so consider it. But there is nothing of that kind here. It was a bona fide statement, and a very plausible statement. I will not say more. I refrain from weighing its value at this moment; but, as I said before, it prevents the case from coming within the authority of Withers v. Reynolds, 2 Barn. & Adol. 882, and Freeth v. Burr, L. R. 9 C. P. 208; and consequently, as I understand it, Lord Coleridge made a mistake in the ground on which he went. The rule of law, as I always understood it, is that where there is a contract in which there are two parties, each side having to do something (it is so laid, down in the notes to Pordage v. Cole, 1 Saund. 548 [Ed. 1871]), if you see that the failure to perform one part of it goes to the root of the contract,— goes to the foundation of the whole, — it is a good defense to' say, ‘ I am not going on to perform my part of it when that which is the root of the whole, and the substantial consideration for my performance, is defeated by your misconduct.’ ”

Lord Bramwell said:

“My Lord Coleridge says that the defendants (the now respondents) positively refused to pay for the iron already delivered, and for all which might be subsequently delivered. Now, whether, if. they had positively refused to pay for that already delivered, it would have given any justification to the company or the liquidator for refusing to go on with the contract, it is not necessary for me to say at the present moment; I do not say that it would not; but, if they bad positively refused to pay for all which might be subsequently delivered, it would undoubtedly be an answer, upon the authority of Withers v. Reynolds, 2 Barn. & Adol. 882, and the reasoning which you have heard. But I really cannot, with great submission to the noble lord, find any evidence of that; and Mr! Cohen certainly did not attempt to prove it, but he set up a new ground, which was that the payment of the debt due was a condition precedent to the further performance of the agreement, with which I cannot at all agree.”

The case of Winchester v. Newton, 2 Allen, 492, is in harmony with the English view. The court said:

“It is true that the present plaintiffs denied their liability to make payment for any portion of the timber until the whole was delivered, treating the whole delivery as one entire contract. In that they were wrong, and this court held them liable for the timber first delivered at the expiration of six months after its delivery. But we think that act was not, under the Circumstances, a repudiation of the contract for future delivery, or to operate to excuse the defendant from the performance of his further contract to deliver timber by the 1st of April, 1859. The contract had been substantially divided, the new stipulation postponing both delivery and payment, as to all embraced within it, an entire year beyond the time applicable in both these respects to the delivery of the first parcel. In regard to each portion a distinct liability attached to the parties, and this was not discharged by the plaintiffs’ refusal to pay for the first portion, under the circumstances stated. The case of Withers v. Reynolds, 2 Barn. & Adol. 882, is much relied upon on the part of the defendant. That case, upon a careful scrutiny, will be found to have been put upon the ground of something more than a mere refusal to pay for articles already delivered. It was considered by the court as a prospective refusal, and' applicable to articles yet to be delivered upon the contract. But in the present case the plaintiffs did not, in their refusal to pay for the first parcel of timber upon the ground that the day of payment therefor had not arrived, deny their liability, or affirm their purpose not to pay promptly, and fulfill to the letter their promise to pay for the timber to be delivered under the extended contract. As to that payment they took the same view as the other party. Both held that for the timber yet to be delivered payment was to be made in six months after its delivery. The denial of payment for the timber delivered prior to the 1st of April, 1858, was a denial based upon the legal effect of the contract, the vendee alleging that it postponed the entire payment. This refusal to pay for the timber that had been delivered on the 1st of October, 1858, did not operate to discharge the other party from his promise to deliver timber on the 1st of April, 1859.”

The supreme court of New Jersey takes the same view of this question. Trotter v. Heckscher, 40 N. J. Eq. 612 (4 Atl. 83); Blackburn v. Reilly, 47 N. J. Law, 290 (1 Atl. 27, 54 Am. Rep. 159). In the latter case the English and American authorities were considered, and the rule adopted in the Mersey Case was approved. The court said:

“The rule to be applied in determining whether the express obligations of such contracts remain after one or more breaches by either party has been the subject of much discussion of late years, and has given rise to some contrariety of judicial opinion. We do not feel constrained, by the phases of the present case, to enter at any length upon the details of this discussion. In our opinion, the rule established in England by the judgment of the house of lords in Mersey Steel & Iron Co. v. Naylor, 9 App. Cas. 434, affirming the judgment of the court of appeal in 9 Q. B. Div. 648, is one which, in ordinary contracts of this nature, will work out results most conformable to reason and justice. The rule is thát defaults by one party in making particular payments or deliveries will not release the other party from his duty to make the other deliveries or payments stipulated in the contract, unless the conduct of the party in default be such as to evince an intention to abandon the contract, or a design no longer to be bound by its terms. This rule leaves the party complaining of a breach to recover damages for his •injury on the normal principle of compensation, without allowing him the abnormal advantage that might inure to him from an option to rescind the bargain. It also accords with the ancient doctrine laid down by Serjeant Williams in his notes to Pordage v. Cole, 1 Saund. 320b [Ed. 1846], that where a covenant (of the plaintiff) goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the contract on the part of the defendant without averring performance in the declaration. It, of course, is inapplicable where the parties have expressed their intention to make performance of a stipulation touching a part of the bargain a condition precedent to the continuing obligation of the contract; and peculiar cases might arise where the courts would infer such an intention from the nature and circumstances of the bargain itself, — cases-in which the courts would see that the partial stipulation was so important, so went to the root of the matter (to use a phrase of Blackburn, J., in Poussard v. Spiers, 1 Q. B. Div. 410), as to make its performance a condition of the obligation to proceed in the contract.”

In New York the question was considered in the case of Cahen v. Platt, 69 N. Y. 348 (25 Am. Rep. 203), and it was held that a delivery of one invoice of glass that was inferior to that contracted for did notq'ustify the purchaser in refusing to take subsequent consignments of glass corresponding with the requirements of the contract. See, also, Ebling v. Bauer, 17 N. Y. Wkly. Dig. 497; Selby v. Hutchinson, 9 Ill. 319; Bloomington Electric-Light Co. v. Radbourn, 56 Ill. App. 165; Gatlin v. Wilcox, 26 Ark. 309.

The case of Myer v. Wheeler, 65 Iowa, 390 (21 N. W. 692), is closely analogous to the present case. Plaintiffs sold defendants 10 car loads of barley. Defendants were to pay 70 cents per bushel for each car load, when delivered. On receipt of the first car load the defendants refused to pay upon the ground that the barley was not equal to the sample, but stated that they had given plaintiffs credit for 65 cents per bushel, and would withhold payment until the 10 car loads were delivered, and urged shipment of the remainder. It was held that this did not entitle plaintiffs to rescind the contract, and that they were liable for damages resulting from nondelivery of the remainder. See, also, Burge v. Railroad Co., 32 Iowa, 101.

A valuable note upon this subject will be found in Lake Shore, etc., R. Co. v. Richards, 30 L. R. A. 33 (s. c., 153 Ill. 59, 38 N. E. 773). The authorities are reviewed in Norrington v. Wright, 115 U. S. 188 (6 Sup. Ct. 13), though the exact question before us was not involved. An interesting note upon that case at circuit will be found in 31 Am. Law Reg. (N. S.) 395 (s. c., 5 Fed. 768), where the authorities, English and American, are collected. In 3 Benj. Sales (4th Ed.), § 909, the author says, that:

“In America the law appears to be fairly settled in accordance with the decision in Simpson v. Crippin, L. R. 8 Q. B. 14, viz., that, in the absence of any expressed intention of the parties, a contract for the sale of goods by successive deliveries is severable, and the failure to accept or deliver on'e installment does not entitle the other party to refuse delivery or acceptance of the installments that remain. Only one case — King Philip Mills v. Slater, 12 R. I. 82 (34 Am. Rep. 603 ) — has been found in which the rule laid down in Simpson v. Crippin is directly attacked.”

The editor of American Notes to the fourth edition takes issue with Mr. Benjamin, but we think his views are not as well supported by the authorities as the review of Norrington v. Wright, by Mr. Landreth.

See, also, Clark, Cont. 652 et seq.; Lee v. Saddlery Co., 38 Mo. App. 201; and 1 Beach, Cont. §§ 122, 123, 849, and notes.

It is urged that the following cases show that a different rule prevails in Michigan: Grand Rapids, etc., R. Co. v. Van Deusen, 29 Mich. 444; Hubbardston Lumber Co. v. Bates, 31 Mich. 168; Stahelin v. Sowle, 87 Mich. 135 (49 N. W. 529); Scheible v. Klein, 89 Mich. 385 (50 N. W. 857). An examination of these cases will show that they are distinguishable.

The case of Grand Rapids, etc., R. Co. v. Van Deusen contains a dictum that repeated failures to pay estimates on railroad grading would have justified the plaintiff in quitting work and claiming damages. He did not quit, but performed his contract, and claimed damages for increased cost, occasioned by defendant’s failure to pay; but the court held that he was entitled to interest only, which was the measure of damages, regardless of the actual injury. The case holds simply that a failure to pay estimates is a departure from the terms of the contract, for which interest may be recovered. But in such ,a case the dictum may have been correct upon the ground that it was a departure from the contract in such a substantial particular as to excuse nonperformance by the other party of a contract that could not be called sever-able.

Hubbardston Lumber Co. v. Bates, 31 Mich. 168, is not in any way decisive of this question.

The case of Stahelin v. Sowle, 87 Mich. 124 (49 N. W. 529), is more nearly in point. It arose out of a contract to furnish ties. The plaintiff agreed to move his sawmill, and cut logs for the defendant only. It was claimed by the defendant that the failure of the plaintiff to perform work contracted for made it necessary for him to get his ties cut at another mill in order to meet his engagements, and excused him from performing his contract. The court held that this raised a question for the jury, and said:

“Where one party has departed from a special contract for the delivery of specific articles from each to the other, the other party may treat it as rescinded; and if, by the terms of the contract, concurrent acts are to be performed, —as the delivery of property by one party and the payment of price by the other, — if either party should refuse to perform his part of the contract, the other may treat the contract as abandoned, and justify rescission under it.”

That was not an instance where the case turned upon a provision which “made concurrent the delivery of property and payment of the price,” though it did involve mutual acts, the nonperformance of which might excuse a departure from the contract. Manifestly, if a person contracted to deliver a horse to another, for which he was to receive a price upon delivery, he would be justified in withholding delivery if the other refused to pay the price; and, on- the other hand, the purchaser need not pay the price if the seller refused to deliver the horse. Either refusal would go to the whole contract. That is the most that can be made of the text in that case. The cases hereinbefore cited distinguished between such cases and others involving delivery and payment by installment, and they illustrate the possible hardship of the application of so rigid a rule, and relieve against it. At the same time they hedge about the immunity of the nonperforming party by conditions and limitations that amply protect the other. The questions of solvency and intention enter into the case, and a jury passes upon them.

For reasons that will be obvious to the reader, the case of Scheible v. Klein, 89 Mich. 385 (50 N. W. 857), is not controlling here.

Counsel for the defendant cites a number of cases, most of which can be distinguished from the present case, though it is true that some of them are very similar. We do not discover that the question before us has been passed upon by this court, and it is unnecessary to discuss the other cases cited. The subject was referred to in the cases of McGregor v. Ross’ Estate, 96 Mich. 108 (55 N. W. 658); Robinson v. Railway Co., 103 Mich. 607 (61 N. W. 1014); and Eakright v. Torrent, 105 Mich. 294 (63 N. W. 293).

In some of the cases discussed herein it is said that there may be a question for the jury; i. .e., whether there was an intention to abandon or not perform the contract. In this case, however, there is nothing to indicate such an intention. The plaintiffs insisted upon the delivery of the wood, and it does not even appear that they did not intend to pay for every succeeding car that the defendant might deliver. We think, therefore, that the learned circuit judge did not err in holding that the plaintiffs had established a right to recover.

The judgment is affirmed.

The other Justices concurred.

       Among the cases so cited were the following: Hall v. Rupley, 10 Pa. St. 231; Robson v. Bohn, 27 Minn. 333 (7 N. W. 357); Palmer v. Breen, 34 Minn. 39 (24 N. W. 322); Doughten v. Building & Loan Ass’n, 41 N. J. Eq. 556 (7 Atl. 479); Fletcher v. Cole, 23 Vt. 114; Shirley v. Shirley, 7 Blackf. 452; Cromwell v. Wilkinson, 18 Ind. 365; Hawley v. Smith, 45 Ind. 183; Ward v. Kadel, 38 Ark. 174; Chapin v. Norton, 6 McLean, 500; Shaffner v. Killian, 7 Ill. App. 620; Bannister v. Read, 6 Ill. 92; Carney v. Newberry, 24 Ill. 203; Graham v. Holloway, 44 Ill. 385; Graves v. White, 87 N. Y. 463; School District v. Hayne, 46 Wis. 511 (1 N. W. 170).


source: Caselaw Access Project

author: Montgomery, C. J. Hooker, J.

license: Public Domain

text:
    STRETCH v. VILLAGE OF CASSOPOLIS.
    Municipal Corporations — Highways — Removal of Shade Trees — Notice to Abutting Owner — Damages.
    Where a village exercises its right to cut down shade trees standing within the highway, without first giving notice to the abutting owner that the public necessity requires the removal of such trees, so that he may have an opportunity himself to transplant or remove them, it will be held liable to the owner in an action of trespass; and the plaintiff in such action need not prove that, had he received such notice, he would have attempted to remove the trees. Hooker, J., dissenting.
    Error to Cass; Coolidge, J.
    Submitted June 5, 1900.
    Decided November 13, 1900.
    Trespass quare clausum fregit by Edith Stretch against the village of Cassopolis. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      M. L. Hoivell, for appellant.

      Coy W. Hendryx and Harsen D. Smith, for appellee.

       As to ownership and control of trees in the highway, see note to Chase v. City of Oshkosh, (Wis.) 15 L. R. A. 553.
      As to trees in streets as nuisances subject to municipal control, see note to Mayor, etc., of Hagerstown v. Witmer, (Md.) 39 L. R. A. 649, 670.

   Montgomery, C. J.

The sole question which this record presents is whether a village, acting under the general incorporation act (1 Comp. Laws 1897, chap. 87), may cut down and remove shade trees standing within the highway, and which have been planted and maintained by the abutting owner, who owns to the center of the street, when such removal is without previous notice to the abutting owner to remove the trees.

There is no question but that the abutting owner has the title to shade trees adjoining his premises. Cooley, Torts, 318; Clark v. Dasso, 34 Mich. 86; Rogers v. Randall, 29 Mich. 41; People v. Foss, 80 Mich. 559 (45 N. W. 480, 20 Am. St. Rep. 532). It .is equally well settled, and is conceded by the learned counsel for the plaintiff, that the municipality may, when the' public necessities appear to it to call for such action, require such shade trees to be removed. The question is whether, as preliminary to their removal by the public authorities, the owner should have notice of the fact that the public necessity requires the removal of the trees, and be given the opportunity to himself transplant them or remove them. The case of Clark v. Dasso, supra, answers this question in the following language:

“ It is to be remembered that the trees are the property of the adjacent owner, who cannot lawfully be deprived of any species of property in the summary mode which was adopted in this case. If the trees must be removed, he may prefer to take them as living trees, and transplant them elsewhere, perhaps in more suitable localities in the street; and he should not be compelled to cut them down where removal is preferred.”

We are satisfied that this view applies with as much force in the present case as in Clark v. Dasso. No other view is consistent with ownership of the trees by the adjacent owner. True, this title is subservient to the public right, but the public right may well be exercised in a manner not to entail entire loss of property upon the owner. It may be true that the language quoted is dictum, but such has been understood to be the law for many years, and we discover nothing in the rule which imposes on the public authorities any great burden.

The case of Wyant v. Telephone Co. is not inconsistent with this holding. In that case, which may be found in 123 Mich. 51 (81 N. W. 928, 47 L. R. A. 497), notice to the owner would furnish no opportunity to avoid the cutting of limbs. Whatever damage a tree might sustain by such cutting could not be obviated by the owner. Therefore notice to the owner would serve no purpose. In case of the destruction of the tree an entirely different consideration obtains. The owner who has notice of the public requirements is in a position to protect himself in a large part from damages. So clearly is this a valuable right that it has been held that a duty rests on the owner to protect himself from unnecessary damage; as in Shawnee County Com’rs v. Beckwith, 10 Kan. 603, where in a condemnation case the owner of a hedge sought allowance for the value of it, and it was held that the allowance should be limited to the cost of removing the hedge and its depreciation in value by reason of the transplanting.

It is' contended that the plaintiff in this case did not suffer because -of the failure to give notice, because she testified that, if she had had notice, the trees would not have been removed. Whether the plaintiff meant by this that she would have taken steps to prevent their removal, or that she herself would not have removed them and allowed the village authorities to do so, is not quite clear, but it does appear that she was not given the opportunity to decide the question. The removal was, therefore, an invasion of her legal rights, and the judgment for the damages sustained is affirmed.

Moore, Long, and Grant, JJ., concurred with Montgomery, C. J.

Hooker, J.

(dissenting). I concur in the opinion that the village is liable upon the ground that the agents of the village converted the trees to the use of the village after they were out, as was substantially true in Clark v. Dasso, 34 Mich. 86.

I am of the opinion that not only has the village authority to remove trees when necessity requires it for highway purposes, but that it does not become a trespasser by so doing, so long as it does not do unnecessary damage to the owner either by greater injury to the trees than is necessary, or by preventing their removal to another location by the owner wrhere feasible, which would be doing unnecessary injury. But I think it cannot be properly said that the right of action exists in every case where notice has not been given, whether a notice would be of use or not. If the tree could not; by any possibility,, be saved, or if the owner should not care to remove it, or if it were not practicable to do so profitably, there would be no damage, and a rule which subjects a municipality to damages and costs in such a case is, in my opinion, unjust, and at variance with Wyant v. Telephone Co., 123 Mich. 51 (81 N. W. 928, 47 L. R. A. 497). In that case it was held that the defendant was not liable, although no notice was given nor opportunity afforded for the owner to cut the limbs, because no unnecessary injury was done. The same rule should apply to any other case of tree cutting, where the owner has not been subjected to damage. This question is discussed at length in an opinion by the writer in Miller v. Railway, post, 174 (84 N. W. 50), where numerous cases sustaining the authority of municipalities to cut trees summarily are cited. The judgment should be reversed for error in the charge relating to the measure of damages.


author:
      Grant, J.
      Hooker, J.

text:
    MILLER v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.

    Street Railways — Removal oe Obstructions — Shade Trees— Notice.

       1. A street railway, authorized by the proper township authorities to lay tracts and to erect trolley poles and string wires, is by implication authorized to remove obstructions, including shade trees, without compensation to the owner, when such removal is necessary for the construction of the railway as located by the township authorities.
    2. The law, however, does not give the right to remove shade trees without notice to the owner, and an opportunity given him to remove them. Hooker, J., dissenting.
    Error to Washtenaw; Kinne, J.
    Submitted June 7, 1900.
    Decided November 13, 1900.
    Trespass quare clausum fregit by Fanny B. Miller against the Detroit, Ypsilanti & Ann Arbor Railway. From a judgment for plaintiff, defendant brings error;
    Affirmed.
    Plaintiff recovered a judgment in the court below of 1275 for the destruction of 11 shade trees in front of her property, dug up and removed by the defendant in the construction of its railway. Plaintiff’s land is situated in the township of Ypsilanti. The proper township authorities granted a franchise to the defendant’s assignors for the construction of the railway, and fixed its location 20 feet from the center of the highway. This location of the roadbed evidently made it necessary to remove the trees.

      Cutcheon & Stelhvagen (John D. MacKay, of counsel), for appellant.

      Tracy L. Towner (John P. Kirk, of counsel), for appellee._____

       Rehearing denied February 27, 1901.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The principal and important question in the case is, Has a street railway company the right to remove shade trees within the limits of the public highway, for the construction of its road as established by the township authorities, without compensation for damages ? The same principle was involved in Wyant v. Telephone Co., 123 Mich. 51 (81 N. W. 928, 47 L. R. A. 497). We there distinctly held that a telephone company had the right to cut out the branches of the trees along the public highway under a franchise similar to that here conveyed. The same necessity may exist for the removal of trees as may exist for the removal of their branches. The principle is the same in either case. It is established beyond controversy that municipal authorities have the entire control over their highways, streets, and sidewalks, and may remove shade trees whenever they are an obstruction to the use of the highway for public travel, without compensation to the owner. Vanderhurst v. Tholcke, 113 Cal. 147 (45 Pac. 266); Everett v. City of Council Bluffs, 46 Iowa, 66; Wilson v. Simmons, 89 Me. 242 (36 Atl. 380).

It is true that these trees were lawfully planted, and that they are the private property of the abutting owner. It is also true that one planting trees in the public highway plants them with the understanding that they can remain there only so long as the space occupied by them is not required for public use. These roads are not an additional servitude, as we have repeatedly held. When, therefore, their construction is duly authorized, it logically follows that the company has the right to remove from the highway any obstruction which interferes with the proper construction and operation of the road. Such power is necessarily implied. Dodd v. Traction Co., 57 N. J. Law, 482 (31 Atl. 980); Southern Bell Telephone Co. v. Francis, 109 Ala. 224 (19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930). When a man dedicates his land for a public highway, or it has been condemned for that purpose and he has been compensated, it is definitely understood by him that whatever he may lawfully do within the boundaries of that highway is done with the right of the lawful authorities to appropriate the entire width of the highway for purposes of travel, if it shall become necessary. Street railways, in city and country, have come to be regarded as a public necessity, and their construction upon the highways universally sanctioned If the township authorities may remove any obstruction to the public use, there seems to be no sound reason why they may not authorize street-railway companies, telephone companies,.and the like to do so, when such companies are lawfully entitled to the use of the streets. It is conceded that the township authorities in this case were authorized to grant the franchise to the defendant, and to determine in what part of the highway its road should be constructed. The township authorities might possibly fix, as a condition to the grant, the payment of damages for the destruction of shade trees. The legislature undoubtedly has the power to provide thát abutting owners should be compensated for the damage that must result to them in the destruction of their trees. . That, however, is a matter for the determination of the legislature, and not for the courts. The legislature has granted the power to do it without compensation. The township authorities have not provided for it. Courts are therefore powerless.

But there is one fatal defect in the defendant’s proceedings. It secured no greater rights by its franchise than the municipality had. The law gives neither the right to remove shade trees without notice to the owner, and an opportunity given to him to remove them as he may see fit. Clark v. Dasso, 34 Mich. 86. Under that decision plaintiff was entitled to recover for damages, and the judgment must, therefore, be affirmed. See, also, Stretch v. Village of Cassopolis, ante, 167 (84 N. W. 51).

Judgment affirmed.

Montgomery, C. J., Moore and Long, JJ., concurred with Grant, J.

Hooker, J.

(dissenting). If it be conceded that the abutting owner has a qualified property in shade trees in the highway adjoining his premises, as he has in the grass, by reason of his ownership of the fee, it is held, like the grass, subject to the right of the public, through its officers, to make such use of the highway as the public interests may require, though the grass or the trees should thereby suffer injury or destruction.

The'origin of the idea tha the owner is entitled to notice of removal is in the statute, chapter 28 of the Revised Statutes of 1846 (see 1 Comp. Laws 1871, § 1317), which chapter was designed to encourage the planting of shade trees. The section cited imposed a penalty on the willful injury or destruction of such trees, but provided that the board of highway commissioners might order their removal. As was said in Wyant v. Telephone Co., 123 Mich. 51 (81 N. W. 928, 47 L. R. A. 497), this statute was construed in Clark v. Dasso, 34 Mich. 86, and it was held to require notice and a reasonable opportunity to the owner to remove the trees. This statute is no longer in existence. It was amended in 1875 (Pub. Acts 1875, p. 97; 3 How. Stat. § 1408 et seq.; 2 Comp. Laws 1897, § 4163 et seq.), and, while the planting of shade trees is still encouraged, the former provision requiring notice before removal was omitted in the subsequent legislation. Clark v. Dasso, supra, rests upon this statute, and apparently proceeds on the theory that the statute by implication forbade the removal of shade trees by the authorities except in the manner therein prescribed.

In my opinion, it has never been the rule at common law that the authorities must, before using or mending any portion of the public highway, give notice to the abutting owner that his grass or trees were to be injured or destroyed, unless removed, and then wait for such removal for such a period of time as a jury might say after-wards would have been reasonable; e. g., until the grass should grow and ripen, or the leaves fall, and sap descend from the trees. Makepeace v. Worden, 1 N. H. 16; Winter v. Peterson, 4 Zab. 524 (61 Am. Dec. 678); Dodd v. Traction Co., 57 N. J. Law, 482 (31 Atl. 980); Ely v. Parsons, 55 Conn. 83 (10 Atl. 499); Theobold v. Railway Co., 66 Miss. 279 (6 South. 230, 4 L. R. A. 735); Brainard v. Clapp, 10 Cush. 6 (57 Am. Dec. 74); Southern Bell Telephone Co. v. Francis, 109 Ala. 224 (19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930); Chase v. City of Oshkosh, 81 Wis. 313 (51 N. W. 560, 15 L. R. A. 553, 29 Am. St. Rep. 898); Livingston v. Wolf, 136 Pa. St. 519 (20 Atl. 551, 20 Am. St. Rep. 936); Tate v. City of Greensboro, 114 N. C. 392 (19 S. E. 767, 24 L. R. A. 671).

In Clark v. Dasso the commissioner had sold the trees to another, who cut and removed them. This was held not within the act, and in this connection plaintiff’s property rights were discussed. It cannot be supposed that the distinguished jurist who wrote the opinion intended to intimate that, previous to the enactment of the statute, the local authorities could not lawfully remove trees from the highway, or that it was ever necessary to call out a jury to determine the necessity and the damage before they could act. Manifestly, it was right to say that a commissioner had not the right to appropriate property of the abutting owner upon no better ground than the statement of the would-he purchaser that it ought to be removed.

If righr m the conclusion that the common law did not require notice before removal, and that the only statutory requirement of the kind has been repealed, we should not invade the legislative domain by establishing such a rule.

But this is not all. The claim of the plaintiff rests upon the proposition that the defendant is a trespasser, and, if it is, it is so not because it had no right to have the trees removed, which is indisputable, but because it had them removed without giving notice, and a reasonable opportunity to the plaintiff to remove them, notwithstanding the fact that it has not appropriated them, or deprived her of them, when cut. The alleged right of recovery is not left to depend upon the infliction of actual and unnecessary damage, but upon the omission of a technical notice, which it is claimed may alone constitute a trespass, if counsel’s theory is correct. If this is so, the rule must extend to the cutting of any tree by the highway commissioner without notice and reasonable delay, no matter how great the exigency, and although it may be a benefit, instead of an injury, to the abutting owner; and if this is so as to a tree, it is also true of the grass or the shrubs that spontaneously grow upon the borders of the highway. I think this position is untenable. We have held in the Case of Wyant that the cutting of branches was not actionable unless excessive or unnecessary injury was inflicted, and that should be the rule here. If the cutting of a tree without notice is a trespass, the cutting half of a tree without notice is a trespass. In this case we might perhaps hold that an injury resulting from the cutting of these trees without giving an opportunity to save them was actionable if there was any evidence that the plaintiff had a desire to remove them, or would have done so had the opportunity been given, or that she did not have knowledge of the intention to cut them long before they were cut, or that such cutting involved damage. She never intimated a desire to remove them. There is no testimony tending to show that she could profitably do so, or that any one along the entire line of the road considered the removal of trees by any other method than their destruction feasible or economical. The court left but two questions to the jury: (l) Rid the defendant cause the removal of the trees ? (2) What was the damage ? I am of the opinion that this was error, and the judgment should be reversed.


author: Long, J.

text:
    HANNAH & LAY MERCANTILE CO. v. HARTZELL.

    1.. Mechanics’ Liens — Description oe Premises — Variance.
    A mechanic’s lien will not be defeated because of an erroneous reference, in the statement of lien filed with the register of deeds, to the title of the village plat in which the premises are located, where the only lots owned by the' defendant in said village, corresponding to those set forth by number in the statement of lien, are the ones on which the building was erected, and which are described in the bill to enforce the lien.
    2. Same — Payments by Owner — Evidence.
    In a suit to enforce a mechanic’s lien, proof that the owner of the building paid for labor and materials entering into its. construction, on the order of the contractor, an amount exceeding the original contract price, is insufficient of itself to> show that he has discharged his full obligations under the contract, where it appears that some extras were furnished, and the contract gave him the right to make alterations in the plans, whereby the contract price might be increased.
    3. Same — Distribution.
    An owner making payment for labor and material without requiring from the contractor the sworn statement provided for by 3 Comp. Laws 1897, § 10713, is entitled to credit therefor, as against a lien claimant, only so far as the amount paid has been distributed pro rata among the several claimants, in accordance with section 10710.
    4. Same — Defects in Construction — Recoupment.
    Where the owner has accepted the building from the contractor as complying with the contract, he cannot' recoup against a material man for alleged defects in construction.
    Appeal from Wexford; Aldrich, J.
    Submitted June 12, 1900.
    Decided November 13, 1900.
    Bill by the Hannah & Lay Mercantile Company against 5. E. Hartzell, Charles H. Bostick, and others to enforce a mechanic’s lien. From a decree for complainant, defendant Bostick appeals.
    Affirmed.

      Manly C. Dodge, for complainant.

      I. G. Wheeler (Sawyer & Bishop, of counsel), for appellant.

       Rehearing denied January 15, 1901.

   Long, J.

This bill was filed to enforce a lien for materials furnished to S. E. Hartzell, a contractor and builder, in putting up a building for Charles H. Bostick, in Wexford county. The'contract price was $2,388. The building was completed about August 1, 1898, and Bostick went into the occupancy thereof. To secure its claim, complainant filed the statutory statement of lien within the proper time upon the lands and building of which Bostick was the owner. The property was described in the bill as “the west twenty-five feet off from lot twenty-one, and the west twenty-five feet off from the north half of lot twenty, in the village of Mantón, Wexford county, and State of Michigan, according to the railroad plat thereof.” It appears that all the formal steps necessary to constitute a valid lien were regular. The owner, contractor, and lien claimants were made parties defendant to complainant’s bilk It is undisputed that, at the time the liens were filed, Hartzell, the contractor, was owing to the complainant $109.94, and to the Greilick Co., another lien claimant, $333.36. A decree was made in the court below confirming the liens. The only defendant who answered the bill was the owner. It was taken as confessed as to the others. The defendant has appealed. He contends that the court below was in error in the decree rendered, for the reasons:

1. That there is a variance between the description of the premises in the notice of lien and statement of account filed with the register of deeds and in the bill of complaint upon which the lien is sought to be enforced.
2. That there is no proof whatever that the materials furnished by the complainant ever entered into the construction of the building owned by defendant Bostick.
3. That the proofs do not show that the notice of lien and statement of account was filed within 60 days after the last material was furnished.
4. That, the building being improperly constructed, the defendant is entitled to recoup a pro rata share of his losses from the complainant, if he be liable to complainant at all, and that the sum decreed in the case is correspondingly too large.

We are unable to agree with counsel for defendant upon any of these questions. It is undisputed that the building in question for which the complainant furnished materials belongs to Bostick; that it was built by Hartzell under a contract with Bostick, and is the only one built by him for Mr. Bostick. It is admitted by defendant Bostick that he does not own any interest in any other lots 20 and 21 in the village of Mantón, and that the brick building built by Hartzell under the contract is located upon lots 20 and 21, and as described in the bill of complaint. The question of* improper description under the claim of lien was discussed in Jossman v. Rice, 121 Mich. 270 (80 N. W. 25), and it was said that where the building is constructed on lots contemplated by the contract, being the only lots which the owner owns in the village, the lien can be claimed upon the land, though the contract describes it merely as ground in the village. That case, we think, disposes of the question raised here.

It is charged in the bill that at no time has Hartzell, the contractor, made out and delivered to Bostick, the owner, or his agent, a statement, under oath, of the name of any subcontractor or laborer employed by the contractor on the building, or the name of any person, firm, or corporation furnishing materials therefor, giving the amount which is due or to become due, as in such cases required by the statute. This allegation was admitted by the answer. We make this statement for the reason that a further claim is made by the defendant that he has already paid more than the contract price, and should be relieved from paying complainant the full amount of its claim.

It appears that certain amounts were paid by the defendant to Hartzell. The defendant shows the total amount paid by him on orders and by checks to various parties for labor performed and materials furnished in the construction of the building, but there is no evidence that such amount was paid in pursuance of the written contract for the construction of the building. There was some extra work and some extra materials furnished; and the contract provides that the owner might require alterations to be made in the original plans, whereby the contract price might be increased or diminished, yet no evidence was introduced to show what the contract price, as finally adjusted, amounted to, or if there were any large alterations or variations from the original contract agreed upon and carried out. In the absence of such evidence, it cannot be presumed that the amount paid by the defendant owner was either in full or in excess of the contract price as finally agreed upon. There is no showing, even if overpayments were made, that the contractor distributed such payments to the subcontractors, laborers, and material men pro rata. Therefore the owner is not now in a position to contend that any deductions should be made from the claimants now asserting liens. See Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114); Fairbairn v. Moody, 116 Mich. 61, 65 (74 N. W. 386, 75 N. W. 469).

We think there is some evidence that the materials furnished by the complainant went into the construction of the building owned by the defendant.

It appears from the sworn statement by the complainant that the last of the materials were furnished on the 20th day of July, 1898, and the statement of lien made on the 12th of August following. The bill states that this statement was filed in the office of the register of deeds on August 13, 1898, within the 60 days from the date when the last of the materials were furnished by the complainant. This is not denied by the answer, and there is some proof tending to show that this was the date of the filing with the register of deeds.

We think the defendant’s contention that he should be allowed to recoup for the alleged defects in the building is not sustained by the evidence. He claims that he paid the contractor in full, and had gone into possession when this bill was filed. As between himself and the contractor, he was apparently suited with the building and accepted it, but he now attempts to set up this claim of recoupment against the parties furnishing the materials, which he did not set up against the contractor.

We think .the court below was not in error in sustaining complainant’s claim. The decree below must be affirmed, with costs.

The other Justices concurred.

       The lots were described in the statement of lien as being located in the ‘ ‘ original ” plat of said village.


author: Per Curiam.

text:
    J. E. GREILICK CO. v. HARTZELL.
    Mechanics’ Liens — Defenses.
    Case ruled by Hannah & Lay Mercantile Co. v. Hartzell, ante, 177.
    Appeal from Wexford; Aldrich, J.
    Submitted June 12, 1900.
    Decided November 13, 1900.
    Bill by the J. E. Greilick Company against S. E. Hartzell, Charles H. Bostick, and others to enforce a mechanic’s lien. From a decree for complainant, defendant Bostick appeals.
    Affirmed.

      Manly C. Dodge, for complainant.

      I. C. Wheeler (Sawyer & Bishop, of counsel), for appellant.
   Per Curiam.

This case involves the identical questions that were raised in the case of the Hannah & Lay Mercantile Company against the same defendants, ante, 177 (84 N. W. 52). That case is controlling of the present. - The decree must be affirmed.


text:
    WATSON v. KENT CIRCUIT JUDGE.
    Appeals from Probate Court — Laches—Excuse.
    An application to the circuit court for permission to appeal, after the lapse of the 60 days prescribed by statute, from an order of the probate court allowing an executor’s final account, which sets out merely that the petitioner’s attorney never advised her that certain items of the account were erroneously allowed, and that she, being ignorant of her legal rights, failed to appeal, does not disclose a situation within 1 Comp. Laws 1897, § 674, which authorizes the circuit judge to allow an appeal where it appears that petitioner, “from any cause, without default on his part,” omitted to appeal seasonably.

      Mandamus by Carrie Yale Watson to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order denying an appeal from probate court.
    Submitted October 2, 1900.
    Writ denied November 13, 1900.

      Charles McPherson {Crane, Norris & Stevens, of counsel), for relator.

      Wolcott & Perkins, for respondent.
   Long, J.

A petition was filed in the circuit court by the petitioner praying that she might be allowed to take an appeal from certain orders of the probate court, to wit, from an order allowing the final account of Charles D. Lyon, as executor of the estate of Truman H. Lyon, deceased; also from an order directing the distribution of the residue of said estate, and determining the rights of the respective parties therein; also from an order discharging said Charles D. Lyon from his trust as executor of said estate. Upon the filing of this petition the executor answered, denying the right of the petitioner to an appeal from such orders, for the reasons, among others, that more than 60 days had elapsed since the -allowance of his final account by the probate court and his discharge as such executor; that all the facts pertaining to said account were fully and completely known to said petitioner at the time they, respectively, took place; and that the petitioner is of mature age, and of competent judgment, and was present in the court at the time the final account of said executor was examined and allowed, and consented thereto, and was represented by attorneys in good standing, competent to advise her.

The circuit court made an order denying the right of appeal, saying, “I cannot find that justice requires a revision of the case.” Application is now made to this court for a mandamus directing said circuit judge to forthwith set aside such order, and instead thereof to make an order allowing said petitioner, on reasonable terms, to appeal from said orders of the probate court. An order to show cause was issued from this court, and the circuit judge has made return thereto, stating his reasons why the order theretofore made by him should not be set aside. He returns that, at the request-of the petitioner, he made a finding of facts in the proceedings had by and before him on the motion for appeal; that, upon such facts being shown, he denied the petitioner the right of appeal.

The statute (section 674, 1 Comp. Laws 1897) provides:

“If any person aggrieved by any act of the judge of probate shall, from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably.”

The circuit judge found that petitioner was not in default for not having claimed an appeal within the 00 days allowed by statute, but that justice did.not demand a revision of the case.

The only question which we need discuss is whether the appeal should have been taken within the 60 days, as we think that is decisive of the case. The only showing made by the petition addressed to the circuit court for the allowance of an appeal is that the petitioner’s attorneys never advised her that the said executor was not lawfully entitled to certain commissions directed to be paid to him, nor did said attorneys ever advise her to appeal from the order of the probate court allowing the final account of said executor; that—

“Your petitioner, being ignorant of her legal rights in the premises, and relying upon her said attorneys to object to any unlawful allowance which would injuriously affect your petitioner’s rights, had no reason to believe, and did not believe, that the allowance of the said commissions to the said executor was unlawful.”

Under such a showing, can the petitioner claim the benefits of the statute above set forth ? Can it be said that the petitioner, without default on her part, omitted to claim or prosecute her appeal according to law ? We think not, -and the court was in error in finding, under such showing, that she could claim an appeal after the lapse of 60 days.

The statute above quoted was taken verbatim from the Massachusetts statute, and the decisions of the Massachusetts courts under the statute, prior to its adoption in this State, must have great weight in determining the question. Counsel for relator call attention to one case there which they claim sustains the contention now made. In that case ( Capen v. Skinner, 139 Mass. 190 [29 N. E. 651 ]) the court was not called upon to decide the question whether the party failing to appeal in time was without default. The court below found that he was without default, and the supreme court did not pass on the question, but took the decision of the circuit court upon that point to be true. What the circumstances were that caused the delay in making the appeal do not appear in the opinion. The case does not sustain the claim made here. Neither do the cases of Graves v. Hines, 106 N. C. 323 (11 S. E. 362), and Jamison v. Snyder, 79 Wis. 286 (48 N. W. 261), sustain the contention.

Counsel also cite Merriman v. Jackson Circuit Judge, 96 Mich. 603 (55 N. W. 1021), and Jerome v. Wayne Circuit Judge, 117 Mich. 19 (75 N. W. 143). The first case holds that where an appellant employs an attorney in regular standing, and does all that he is required by the advice of his attorney to do to perfect his appeal, he is not to lose his right to an appeal through the neglect or oversight of the attorney. In that case, however, an appeal had • been taken, but the attorney failed to file a copy of the proceedings appealed from in the circuit court within 30 days after the appeal was taken, as required by 1 Comp. Laws 1897, § 672. The party had done all he was required to do by appealing, and had a right to rely upon his attorney to see that the appeal was properly filed. The last case was of like character, where the party relied upon his attorney to see that the appeal, after it had been taken, was filed in the circuit court within the 30 days required by the statute. The case followed Merriman v. Jackson Circuit Judge, supra.

The present case, however, is not like any of the cases cited. Here the petitioner took no steps whatever to claim an appeal within the 60 days; not, however, because she had been advised by her attorneys not to appeal, but because they gave her no advice one way or the other, and her claim is that they should have advised her to appeal. She now pleads ignorance of the law as an excuse for not appealing. She does not claim that she was misled by the opposite party, by her attorneys, or by any other person; If this be sufficient to excuse' laches, then any person could claim an appeal under this statute, however negligent he might be, by setting up that he did not know the law, and upon the excuse that his attorneys did not advise him to appeal.

The court reached the right conclusion, only on another ground. The writ of mandamus must be denied, with costs to the respondent.

The other Justices concurred.


author: Grant, J. Montgomery, O. J.

text:
    PHILLIPS v. UNITED STATES BENEVOLENT SOCIETY.
    Secondary Evidence — Foundation—Degree.

       Parol evidence of the contents of a written instrument which is beyond the jurisdiction of the court, and which has not been lost or destroyed, is inadmissible, in the absence of any evidence excusing the failure to produce either the original or a copy thereof. Montgomery, O. J., and Hooker, J., dissenting.
    On rehearing of case reported in 120 Mich. 142 (79 N. W. 1).
    Former decision affirmed November 13, 1900.

       Head-note by Grant, J.

   Grant, J.

Soon after the former opinion in this case was handed down (see 120 Mich. 142 [79 N. W. 1 ]), a suggestion was made that our holding in point 4 of the opinion was an erroneous statement of the law. A rehearing on that point was ordered, and counsel requested to furnish briefs thereon, as the point was not argued nor any authorities cited in the original briefs. The defendant has furnished no brief, and plaintiff did not furnish one until June 2, 1900. A re-examination of the record shows that this precise point was not raised. The objection was that the testimony was incompetent and immaterial. The witness called to prove the contents of the application was the local secretary of that organization in Owosso. He testified that the application and medical examination had been sent to Toronto, Canada. It was not shown that he had seen or read the application. The testimony was therefore properly excluded. Inasmuch, however, as the question will arise upon a new trial, we will dispose of it.

Defendant did not produce a sworn or certified copy of the application. It made no attempt to produce one by deposition or otherwise. It sought to rely upon the memory of the secretary, who probably is daily receiving similar applications, and forwarding them to the home office in a foreign country. The danger and injustice of this sort of proof are patent. If secondary evidence is admissible because the original is without the jurisdiction of the court, certainly the best secondary evidence should be required, and that would be a sworn or certified copy. Among the cases I have found and examined, I do not find one in which testimony of this character was admitted. They are all cases where sworn or certified copies were presented, or where copies were attached to depositions, the witness having sworn that he had examined and compared the copy with the original, or where a copy was shown to be in the possession of the opposite party. This rule is founded in common sense. It is manifest that the defendant could have procured this evidence. Instead it seeks to rely upon the fallible memory of one to testify to its contents who was not shown to have even read it. If, however, it had been shown that he had read it, it is unfair to a litigant who has no notice of the production of the writing, and no opportunity to meet the unreliable testimony suddenly sprung upon him.

In Knickerbocker v. Wilcox, 83 Mich. 200 (47 N. W. 123, 21 Am. St. Rep. 595), it was said: “Presumably, therefore, it [the bond] was out of the jurisdiction of the courts of this State, and secondary evidence of its contents was admissible.” That was an action of assumpsit upon á written undertaking to indemnify the plaintiff against all harm by reason of his signing a replevin bond in a suit brought at Elkhart, Ind. Transcripts of two judgments in the Indiana court were received in evidence. Objection was made that there was no evidence that plaintiff had signed a replevin bond as requested by defendant, and that it was incumbent upon plaintiff to show the original bond, and that he had in fact executed it. A copy of the bond was found in the transcript of the suit which was brought on it, and there was the testimony of two parties that the same was a true copy of it. It was shown that the original bond had been delivered to the sheriff in Indiana, and had been sued upon by another person in that 'State.

It was said by Justice Campbell in People v. Lambert, 5 Mich. 360 (72 Am. Dec. 49):

“ The general rule is well settled that parol evidence of the contents of a written document cannot be given. The exceptions are where the original is lost or destroyed. The fact that a paper or entry belongs in a public office, and cannot be removed, has never been allowed to open the door to parol evidence. The reason of the law requires the best evidence to be produced which the nature of the case will admit of.”

In People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326), it was held competent to introduce parol evidence of a cablegram which was without the jurisdiction of the court, where an effort had been made to obtain it.

The authorities are not uniform. Some cases hold that an effort must be made to produce the original or account for its absence. Others seem to hold that it is sufficient to prove the absence of the writing from the jurisdiction of the court. Authorities will be found collated in 1 Greenl. Ev. § 563e, and notes. Secondary evidence was held inadmissible in the following cases: Where books of account were taken by a partner, whose whereabouts were not discovered by inquiries made a few days before the trial. Waite v. High, 96 Iowa, 742 (65 N. W. 397). Where a person having a private letter was beyond the jurisdiction of the court, and refused to deliver it up when requested by a person who did not disclose the purpose for which it was wanted. Boyle v. Wiseman, 10 Exch. 647. Where a writing was in the possession of one’s assignees in another State. Townsend v. Atwater, 5 Day, 298. Where a writing was not shown to have been lost or destroyed, and was shown to have been last in the hands of a person outside the State. Wood v. Cullen, 13 Minn. 394. Where letters were written to a man in Ireland, and there was no proof to account for their absence, or that plaintiff had made any effort to produce them. Farrell’s Adm’r v. Brennan’s Adm’x, 32 Mo. 328 (82 Am. Dec. 137).

Where the original writing was in the hands of a railroad company, and the witness, whose deposition was taken by a commission, made a copy, and annexed it to his deposition, it was held that —

“The original should have been produced and proved before the officer, and he should have annexed a true copy in returning the deposition to the court, or, if Jackson [the witness] could not have obtained the original, it was competent to examine the officers of the company in whose custody the paper was.” Comstock v. Carnley, 4 Blatchf. 58 (Fed. Cas. No. 3,081).

The sound and sensible rule is stated by Justice Story in U. S. v. Britton, 2 Mason, 464, 468 (Fed. Cas. No. 14,650), as follows:

‘ ‘ I take the rule to be universally true, and applicable as well to criminal as civil proceedings, that the best evidence the nature of the case admits of, and that is within the reach of the party, is always to be produced;' for the law will never suffer secondary evidence to be admitted when there is better behind and within the power of the party. If, therefore, an instrument is to be proved, the original, if in the possession or control of the party, is to be produced. If the original be lost or destroyed, or in the possession of the opposite party, who refuses to produce it, an examined copy, if any such exists and can be found, is the next best evidence, and must be produced. If no such copy exists, then the contents may be proved by parol evidence, by witnesses who have seen and read it, and can speak pointedly and clearly to its tenor and contents.”

See, also, 21 Am. & Eng. Enc. Law (1st Ed.), 992.

In an opinion written by Chief Justice Marshall it is said:

“The rule of law is that the best evidence must be given of which the nature of the thing is capable; that is, that no evidence shall be received which presupposes greater evidence behind in the party’s possession or power.” Taylor v. Riggs, 1 Pet. 591, 596.

In Ford v. Cunningham, 87 Cal. 209 (25 Pac. 403), it was held that press copies of letters are the best evidence, and, where such copies are shown to exist, it is error to allow oral evidence of their contents.

If the defendant could not produce the original of the application, it could undoubtedly obtain a sworn copy of it by deposition or otherwise, but it made no attempt to do either.

In Platt v. Haner, 27 Mich. 167, parol evidence of the contents of a United States patent which had been lost, or was not accessible, was held to be inadmissible. It was further held that proof by exemplification from the general land office should have been obtained.

I am not unmindful of the language of the court in Eslow v. Mitchell, 26 Mich. 500, wherein it is sqid:

“There is no rule of law that requires secondary evidence to be of one kind rather than another, where the writing is a private writing, and no counterpart is legally presumed or required to exist.”

The facts to which that language was applied are that the writing was lost, and a copy of it was in the hands of Mitchell, the plaintiff below. That statement was not necessary to the decision of the case, because the party had proved the loss of the instrument, and the opposite party might have produced the best secondary evidence by introducing the copy. In less than two years thereafter, Justice Christiancy, in Day v. Backus, 31 Mich. 241, said:

“Without reference to the much-mooted question whether there are any degrees of secondary evidence, or whether mere parol evidence of the contents of Day’s letter could be given so long after it was written, when it was shown that three copies were taken by disinterested persons immediately after it was received (which, for myself, I think was the best evidence [Eslow v. Mitchell, 26 Mich. 500] ), I think,” etc.

From the opinion it appears that the question was not regarded as settled by the former case. I have found no case in this court where the precise question is squarely presented as it is in this case. I find several where copies were produced. To me it seems so eminently just that the copy should be produced, rather than to leave the contents of the paper to the uncertain memory of those who once read the writing, that I am for holding the rule to be that the party must produce a sworn copy, when it is practicable to do so.

It is only necessary for us to hold in this case that the parol testimony offered was inadmissible. Our former opinion, therefore, stands affirmed.

Moore and Long, JJ., concurred with Grant, J.

Montgomery, O. J.

(dissenting). I think that the rule that there are no degrees in secondary evidence was established in Eslow v. Mitchell, 26 Mich. 500, and that it is applicable to this case.

Hooker, J., concurred with Montgomery, C. J.