author: Coo rev Oh. J.

text:
    The Cleveland and Toledo R. R. Company v. John L. Perkins.

      Damages: Contract: Delay. Where cattle were delivered to a railroad company for immediate shipment, blit a written contract was executed by them two days afterwards: in an action for damages^for unreasonable delay;

      Held, That the written contract would be the measure of the obligation of the parties from the time it was given, but that it would not merge any liability the company might have incurred by unreasonable delaywpreviously; there being nothing in its terms to indicate^such an intention.

      Written contract in duplicate: Evidence. Proof of the written contract on the part of the plaintiff below was objected to, because it appeared that a duplicate was signed and left with the company at the time, and no notice had been served on the company to produce this duplicate on the, trial, but it was held that the plaintiff might rely on his own copy, and was under no obligation to call for the other.

      Marled, price: Experts: Newspaper quotations. It is competent for witnesses to testify as to their knowledge of the market price of cattle derived from the newspapers.

      Damages to cattle: Contract: Ti'ansfer. One car load of the cattle was transferred to plaintiff by another person, after they^were received by the defendants, but before the written‘contract was entered into. The company claimed they were liable for any delay to this car load only from the time the transfer was made on their books. The Circuit Judge charged the jury that the company was liable from the time they had actual notice of the transfer, and this charge was held to be correct. '

      Heard July 11th.

      Decided October 7th.

    Error to Lenawee Circuit.
    The defendant in error sued the Railroad Company to recover damages caused by an alleged unreasonable delay on the transportation of cattle, received by them at Toledo, to be transferred to Cleveland; 'and destined to New York.
    The -jury rendered a verdict for plaintiff for $555.
    The cattle were received on the 12th of February. On the 14th of February following, duplicate contracts were executed for their transportation, and one was delivered to Perkins; each party signing his own contract; but the cattle were not forwarded until the 16th of February.
    Numerous exceptions were taken at the trial: the principal of which are stated in the opinion of the court.

      G. A. Stacy, for plaintiff in error.
    1. The part of the contract, signed by the plaintiff should have been proved, or its absence accounted for.
    Though 'the witness swore the papers were duplicates; yet it is evident, from the testimony, that they were not what in law is called “duplicate originals,” not being both signed by both parties.
    2. The plaintiff had no right to introduce testimony' showing delay before the execution of the written contract; as, by its terms, all previous bargains and understandings between the parties were merged in the writing.
    In regard to one car load of the stock, the testimony shows that the transfer of the property on the books of the Company, and the notice to the company, was not made until the time of the signing and delivery of the contract. ,
    3. The plaintiff should not have been permitted to have proved the effect of all the delay in this case, more than if the cattle had left Toledo on Sunday night.
    The defendant was only liable for the delay after Tuesday morning; the date of‘signing the contract the plaintiff should only have been permitted to have proved.
    By the decision of our Supreme Court— 6 Mich. 243 — the right of the carrier to limit his liability by contract is not Only recognized, but it is declared to be a right, beneficial to the individual shipping his property.
    In this case there could be no implied receipt or agreement to carry, because, by the usage.of the company known to the plaintiff, the company never shipped cattle except under a written agreement, signed by the shipper as well as the company.
    The cattle remained at Toledo awaiting shipment till the contract was signed. In that case, the Rail Road Company are not liable as common carriers.— 7 Mich. 515.

    The liability of the company, if any, ivas in refusing to receive the cattle as carriers, and not for neglect as carriers before contract, or except upon the written contract itself.

      4. The admission of witnesses swearing from recollection as to the market reports in newspapers, is clearly error.— 1 Greenlf. Ev. §§ 99, 124; 9 Cush. 36, 40; 8 Met. 436; 3 Gray, 374; 16 Ill. 558.

    The decision in the case in 14 Mich, though extending the rule beyond what it had been previously held at common law, yet does not, as I understand, go so far as to make parol evidence of witnesses evidence of published or newspaper market reports. — 14 Mich. 197.

      A. L. Millard, for defendant in error.
    1. The Rail Road Company are liable for any damages resulting in delay to transport the cattle previous to signing the contract.
    There was an implied contract between the parties before the written contract was made. It arose upon the receipt of the cattle by the defendant, as a common carrier, to be transported to Cleveland.
    True, this was merged in the written contract, from the time the latter was made; but when a breach of the implied contract had occurred before the execution of the written contract, the damages resulting from that breach were not waived by the written contract, nor were they merged.
    The written contract was a new contract, or a modification of the original, implied contract, entered into after the parties had entered upon the execution of the latter. It had no reference to the past, but only to the future. There was in it no release or waiver of any damages already incurred.
    2. The objection to the testimony of the witnesses, the plaintiff and Albert Russell, as to the condition of the New York market, was not well taken.
    The defendant insisted that they could not testify as to this except upon personal knowledge.
    The sources of information which they disclosed were the reports of drovers and salesmen engaged in the business; newspaper reports of the market, and the personal knowledge of one of the witnesses, of what the market was the week previous.
    The Circuit Court allowed them to testify from know ledge derived from these sources, as to what the market was at the time the cattle would have arrived there but for the delays complained of. In this we think there Avas no error.— 14 Mich. 489.

    3. The refusal of the court to charge that the plaintiff could not recover damages for the detention of the stock belonging originally to McDonough, until after the Avritten transfer of the stock on the books of the company to the plaintiff, was not erroneous.
    The court charged that he could not recover damages for such detention until the company had notice of the transfer. There Avas no error in this, at least none of which the plaintiffs in error can complain.
    The Avhole interest in the cattle Avas in the plaintiff beIoav from the time of the transfer, and the loss from the delay Avas his. It Avas Avholly immaterial, so far as his right of action Avas concerned whether the delay occurred before or after the transfer Avas entered on the books of the company, or Avliether that Avas ever done or not.
   Coo rev Oh. J.

Of the exceptions appearing in the record, we shall notice those only Avhich are relied upon in the brief for the plaintiffs in error.

First: That the Circuit Judge erred in alloAV'ing the contract held by Perkins to be read in evidence, before the duplicate, in the hands of the Bail Boad Company, had been produced, or its absence accounted for. This Ave think not Avell taken. The contract signed by the company was deliArered to Perkins as the evidence of their undertaking and liability; and there is no occasion for him, Avhen he is seeking to enforce their obligation, to call for the production of tbe corresponding evidence which he has put into their hands to be used, when needful, against him. If proof of the duplicate could have been important to the defendants, they were at liberty to make use of it, and, as the action was based on the contract, it is to be presumed their evidence of it was present at the trial; but its production was no necessary part of the plaintiff’s case.

Second: That proof of delay on the part of the Rail Road Ooppany, before the signing of the written contract, was inadmissible. This objection is on the theory that the written contract merges all prior negotiations, as well as the implied contract which the law would raise from the reception of the cattle for transportation. Undoubtedly the writing is to be the measure of the company’s liability from the time it was given; but there is nothing in its terms which purports to waive any claim to damages which might' have accrued in favor of Perkins previously. When the company received the cattle for transportation, they impliedly undertook to transport them safely, and without unreasonable and unnecessary delay; and this implied contract remained in force until the parties substituted a written one, and it must measure the rights of the parties up to that time. To hold that, because the company were in the practice of carrying only under written contracts, they might delay indefinitely, without liability, after the receipt of the cattle, until they saw fit to give a written contract, would be to advance a doctrine without basis in reason or justice. The custom does not preclude implied or oral contracts, for the parties may vary from it in any case; nor does it make the written contract, when given, relate back to the reception of the cattle: its effect is only to govern the obligations of the parties from the time of its execution.

We are referred to the case of M. S. and N. I. R. R. Co. v. Shurtz, 7 Mich. 515, as authority that, up to the execution of the writing, the cattle were simply in the hands of the Company, awaiting shipment. But the two cases differ entirely in their material facts. In Slmrtz’s case the property was stored with the Company, awaiting the orders of the owner for transportation; but in the case at bar, the property was delivered to the Company for immediate transportation; and whatever delay occurred, whether reasonable or unreasonable, was against his will.

Third: That the court erred in allowing the witnesses to testify to a knowledge of the New York market derived from the newspapers. This objection is met by the decision of this court in Sisson v. Cleveland and Toledo R. R. Co. 14 Mich. 497. That case does not require that the newspapers themselves should be put in evidence, but it recognizes them as a proper source of information to which .persons interested in the markets may resort; and there is no reason why they should not testify the result of their examinations, as they might the result of inquiries in the market places.

These remarks appear to cover the ground taken in the brief of the plaintiff in error.

Something is said about one car load of cattle transferred to Perkins by another person after they had been received at Toledo; and in regard to which, the judge was asked to charge the jury that the Company was not liable for any delay until the transfer was actually made on their books. This he declined, but- did charge them that the Company was not liable until actual notice was received of the transfer. The brief assumes that notice of the transfer was not given to the Company until the written contract was entered into; but the record shows that the written transfer was made on the Company’s books the day before. The liability of the Company, however, could not depend on the plaintiff’s ownership appearing by their books: if they had notice of it, that would be sufficient.

We discover no error in the record, and the judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Graves J.

license: Public Domain

text:
    John G. Parkhurst v. Barney Jacobs.

      Trover: Mortgagee: Possession. Where a mortgagor was permitted by the mortgagee to remain in possession of certain goods, a trespasser upon the same can not defend by showing a right of possession in said mortgagee; such right not being in conflict with the mortgagee’s possession and title.

      Heard July 13th.

      Decided October 7th.
    Error to Wayne Circuit.
    This was an action of trover against the plaintiff in error to recover the value of certain goods described in the declaration. On thev trial, the testimony of the plaintiff tended to prove that on the 9th day of January, 1867, he p\irchased the goods in question of Black & Alexander; that they were taken from his possession by. the defendant; and that the value of the goods thus taken was as alleged.
    The defendant introduced in evidence a chattel mortgage upon said goods, which, it was admitted, the plaintiff executed at the time of the purchase thereof, and to secure the purchase price of said goods.
    In addition to the ordinary provisions of chattel mortgages, it contained clauses providing that the goods thus mortgaged were to be sold at retail by the plaintiff below at Eentonville; that he was to use due diligence in selling them, and that he was to pay soventy-ñve cents on the dollar of the original inventory price of the proceeds of such sales to the mortgagee as fast as he sold the same, until the whole purchase money remaining due should be paid.
    The defendant also gave evidence tending to prove that said mortgage was not paid, but there was no evidence tending to prove that the mortgagor had made any default in the payment thereof.
    The simple question raised by the several assignments of error is whether the plaintiff below, the mortgagor, was entitled to bring trover against the defendant, a mere wrong doer.

      Judgment was rendered in favor of plaintiff below.

      Hodges & Dickinson, for plaintiff in error.
    The object of the action of trover is to try the title to personal property, and to enable the absolute or special owner to recover the value thereof ■ when wrongfully deprived, and the gist of the action is that the plaintiff waives the tort of the wrong doer, and if he establishes property in himself and conversion by defendant, he receives the value of thé goods and passes full title to the defendant. 1 Burr. 31; Stephen on Pl. 19.

    And the plaintiff must have possession, coupled with a vested right of property at the time of the conversion, and this he must show affirmatively.— 10 Mich. 433; 7 Cow. 294; 1 Chitty’s Pl. 148, and note.

    The mortgagor of chattels has not such right in the mortgaged goods unless by special agreement for a definite period.— 3 Mich. 104; 4 Id. 134.

    The plaintiff below had no right of possession of the goods mortgaged; by the terms of the mortgage the mortgagee was vested with the absolute property and possession upon the making and delivery of the mortgage, and the rights of the mortgagor were no greater than those of a servant.— 12 Me. 283; 6 Barb. S. C. 362; 2 Barr, (Penn.) 318; 8 Watts & S. (Penn.) 232.

    Whatever is incumbent upon the plaintiff to prove may be rebutted by the defendant; hence in this action he may show title out of the plaintiff by showing it in himself or any other person.— 10 Mich. 433; 3 Barb. S. C. 304; 2 Greenlf. Ev. 648.

      B. C. Hinsdale, C. I. Walker, and S. T. Douglass, for defendant in error.
    It is now well settled that possession is sufficient evidence of title against a mere wrong doer, and he can not raise the question of title in a third person, especially if that possession be of such a character as to give the plaintiff a special property in the chattels converted.— 9 M. W. 465; 34 Eng. L. and E. 122; 3 N. H. 484; Vt. 271; 11 Wend. 54; 13 Id. 63; 40 Barb. 382; 17 Wis. 550; 4 Mich. 137.

    Thus, a mere receipt man may bring trover against a mere wrong doer.— 13 Vt. 500. Or a mere bailee.— 40 Barb. 383. Or a mortgagor.. — 4 Eng. 46.

    On the other hand, a mortgagee or other general owner not entitled to immediate possession can not bring trover or replevin. — 15 Me. 373; 25 Id. 89; 27 Id. 16; 16 Pick. 462; 22 Id. 338; 9 Yerg. 362.

    A mortgagee entitled to immediate possession may unquestionably bring trover; and to defeat this right of immediate possession, which the nature of his title gives him, there must be a clear provision to that effect in the mortgage.— 3 Mich. 111; 4 Id. 295; 12 Me. 282; 12 Met. 308.

    These cases clearly recognize the doctrine that it would be otherwise if, by the clear provisions of the mortgage, the mortgagor was not entitled to immediate possession.
    These, too, were all cases where the mortgagee was asserting a right.
    But the defendant can not, as we have seen, interfere with the right of a mortgagee to possession, even if such right existed.
    But in this case it is clear that no such right existed. By the very terms of the mortgage, the mortgagees were to have possession of the mortgaged property for the very purpose of selling the same at retail at Fentonville, and was to pay the mortgagee from the proceeds of such sales. Until a default, the mortgagees had no right of possession, and no default had been made.
   Graves J.

The defendant in error purchased a quantity of goods of Black & Alexander, and gave to the latter a mortgage upon the property, to secure the payment of the purchase money which provided that if he should make payment as fast as he should sell, deducting seventy-five cents on the dollar, according to the original price of the goods, the mortgage should be void. Black & Alexander being such vendors and mortgagees, then invested Jacobs, their vendee and mortgagor, with the actual possession, pursuant to the sense and object of the arrangement.

While Jacobs was thus possessed, Parkhurst, without pretence of right or authority, so far as appears from the record, seized and converted the goods.

Jacobs thereupon brought trover in the court below, and on the trial proved his purchase and possession under it, the conversion by Parkhurst, the value of the property, and rested.

Parkhurst then submitted in evidence the mortgage from Jacobs, before mentioned, and claimed a verdict in his favor. The jury, however, found for the plaintiff.

Neither the validity of the mortgage, nor any claim of creditors, incumbrancers, or- purchasers, was in question, and Black & Alexander, the mortgagees, had in no way interfered or claimed the right to interfere with the possession they had given as vendors and mortgagees; and Parkhurst had not connected himself with any imputed right in Black & Alexander, or shown any authority to intermeddle with the property.

It is therefore seen that the introduction of the mortgage had no other object than to prove paramount title in a third party.

It is maintained, for the plaintiff in error, that he could successfully defend on that ground alone, and that proof of the mortgage constituted such defense.

There has been some controversy as to whether a stranger, guilty of the conversion of goods at the time peaceably and actually in the possession of one having no other right than such as the possession implied, could, by showing an outstanding title in a third person, defeat trover, when brought by the party in possession; and the authorities are not agreed upon it.

The decision of this case does not require us to discuss the soundness of that doctrine, since admitting, for the present purpose, the validity of such a defense, the defendant did not bring himself within the principle on which it is based.

The doctrine adverted to, supposes property in the plaintiff, coupled with actual possession, or the immediate right to it, to be essestial to the maintenance of the action, and adopting the principle that the defendant could contradict what the plaintiff would be bound to prove, allows this to bo done, by showing the right to be elsewhere than in the plaintiff; but as showing a right elsewhere would not produce such contradiction unless the outstanding right should be inconsistent with that set up by the plaintiff, it follows that the two titles or interests would have to, be incongruous in order to’ defeat the plaintiff according to the given hypothesis.'

This result is tacitly conceded by those courts which sustain the doctrine advanced by the plaintiff in error. They all hold that trover may be maintained by particular bailees, factors, and agents, notwithstanding the property interest of such parties presupposes the existence of outstanding titles; and this position can not be supported along with the other, except upon the admission that the outstanding title is only hurtful to the plaintiff’s claim, when actually inconsistent with it. Indeed, it seems sufficiently plain, that according to the doctrine in question, the outstanding right, to be of any avail to the defendant, must be such as to displace, -repel, or exclude, that asserted by the plaintiff’s action. In this case, the goods converted were at the very time peaceably possessed by Jacobs, pursuant to his arrangement with Black and Alexander, and presumptively with their approbation. There was no antagonism between the right of Jacobs, as purchaser, and mortgagor, and that of Black and Alexander, as vendors, and mortgagees. The interests of the parties were neither hostile nor inconsistent, but actually compatible. Neither party had interposed any adverse claim, or attempted to displace or subvert the apparent or pretended right of the other.

The entire transaction imported, that as between the parties, and according to their understanding, Jacobs held possession of the goods, as owner, subject only to those claims which might be asserted under the mortgage, as an instrument of security; and Parkhurst has placed himself in no position to challenge the power or authority of the parties to make such disposition of the goods. He represents neither creditors nor subsequent purchasers or incumbrancers, but appears to be a mere wrong-doer, attempting to shield himself by setting up a right in Black and Alexander, more extensive than any they have claimed.

As between the parties to the sale and mortgage, Jacobs had the actual possession and the right to sell and give a valid title; and the transaction involved a concession by Black & Alexander, of a right in Jacobs to protect his interests, by action, so long as they should, discover no necessity for intervening.

There is, therefore, no better ground for holding that the right or interest of Black & Alexander, under the arrangement, was an outstanding one against Jacobs, in the sense of the rule invoked, than there is for contending that the title of the principal is an outstanding one against his factors, sufficient to defeat the latter, when prosecuting a stranger for a wanton conversion.

Since the .relations of the parties to the sale and mortgage, have, as respects the property, remained coincident, and since Jacobs had, among others, the right of possession, as against Black & Alexander themselves, in the absence of any election by the latter to set up a conflicting claim,, it can not be reasonable that the defendant, when prosecuted by Jacobs for a wrongful conversion, should be allowed to escape, by showing that Black & Alexander might have placed themselves in a position, though they did not, which would have made the holding. by Jacobs indefensible, as against them.

The judgment must be affirmed.

The other Justices concurred.


author: Christiancy J.

text:
    Samuel Savercool v. Jesse H. Farwell.

      Contract: Delivery: Evidence: Variance. By the terms of a contract executed January 9, 1867, one hundred thousand feet of the lumber contracted for, wore to be delivered by the 15th of May following. Eighty per cent, of each lot of fifty thousand feet thereof was to be paid for on delivery, and the balance on delivery of the whole amount.
    On the 9th of April following, the parties made a further agreement, by the t.erms of which, fifty thousand more feet, of another kind of lumber, -was to be delivered, subject to inspection by a competent inspector chosen by Farwell. that the inspection of this, and the lumber mentioned in the first contract, was to be done on the dock at the place of delivery, as mentioned in the prior contract: and, further, that at least one hundred and fifty thousand feet of the lumber mentioned in the first contract was to be delivered by May 1, 1867.
    In an action for the breach of said contracts, after the introduction of the first contract, it was held that the second was properly admitted in evidence. It does not change the mode or rate of payment; neither could it be assumed that the one hundred and fifty thousand feet should all be delivered at once but in the same quantities as mentioned in the first contract. ’

      Contract: Parol Evidence. Evidence was offered to show that, prior io the date of the last contract, there was a verbal agreement that the lumber mentioned in the first contract should be inspected at defendant’s mill, and that a portion of it was so inspected and found correct: Held, that this evidence was properly excluded, all prior verbal agreements being merged in the written contract of April 9th, on the same subject, which required the inspection to be on the dock at Detroit.

      Pleadings: Variance: Evidence. Evidence was offered to show that the inspection could not be made by the person mentione l in the contract, but that the parties agreed that another should do it, and that he did so. >

      Held, That this was competent. That it did not constitute such a material variation of the substance of the contract as should require it to be sot out in the declaration, but was merely a subsidiary matter arising in the course of its performance; neither could its proof bo treated as a variance. The defendant could have been neither misled nor surprised by it.

      Pleadings and evidence: Contract Copies of the two contracts were set out in the declaration, but it was not alleged whether the lumber was inspected or not.
    The gist of the action and the only breach assigned, was the non - delivery of the lumber. The question of actual inspection could not, therefore arise upon the pleadings.

      Evidence: Contract, when conclusive. Evidence tending to show that some of the lumber was improperly rejected by the inspector, was excluded by the court. Held, proper. The inspection was conclusive upon the parties under the contracts.

      Damages: Value, at place of delivery. A witness testified that the value of such lumber, at Wayne (a place eighteen miles in the interior, by rail, from Detroit), was $30 per thousand feet; but that it was higher in Detroit, the place of delivery, though he did not know the price in Detroit. Held, that this was competent evidence, and could not prejudice defendant.

      Contract: Evidence: Fault of Plaintiff. The defendant offered evidence tending to show that a portion of the lumber which was rejected by plaintiff, complied with the requirements of the contract; that this lumber was brought in and unloaded under plaintiff’s orders, and that he declined to inspect a quantity of the one inch sycamore lumber, because there was thin lumber on top of it.

      Held, That, if this thin lumber interfered with or prevented inspection, plaintiff was held responsible for it, and should have removed it; and by failing to do so, before he brought his action, he absolved the defendant from this stipulation of the contract, and left him at liberty to prove, if he could, the quantity of such lumber, and that it was such as met the calls of the contract.

      Heard July 13th.

      Decided October 7th.

    Error to Wayne Circuit.
    This was an action of assumpsit to recover damages for a breach of contract to deliver lumber.
    The declaration set forth two different contracts. The common counts were also added.
    The defendant pleaded the general issue, and gave notice of recoupment.
    On the trial the plaintiff offered in evidence a contract, bearing dato January 9, 1867, made and executed by S. Savercool and J. H. Farwell, by the terms of which, said Savercool agreed to deliver to said Farwell on the Michigan Central Rail Road dock, in Detroit, 'one hundred thousand feet of boards, twelve and fourteen feet long, one inch thick, and thirteen inches wide: One hundred thousand feet of boards twelve and fourteen feet long, five-eighths of an inch thick, and seven inches wide: All to be edged and entirely clean, and piled in cross piles as fast as sawed. One hundred thousand feet to be delivered as above by the loth of May, 1867, and the balance of one hundred thousand by the 15th of June following.
    Said' Far well was to pay for said lumber as follows: $20 per one thousand feet for the inch lumber, and $16 per thousand feet for the five-eighths.
    Payment to be made as follows:
    Eighty per cent, on each lot of fifty thousand, and the balance on the delivery of the whole amount, as above stated.
    Said lumber to be inspected by W. E. Warriner, or some competent inspector whom he might choose.
    Plaintiff then offered in evidence, under objection, another contract dated April 9, 1867, by the terms of which said Savercool agreed to deliver to said Far well the following lumber at the dock of the Michigan Central Rail Road Company: Fifty thousand feet of white wood board, subject to inspection, and also that said Far well should receive said lumber, and pay said Savercool the sum of $25 per thousand feet, and that this, and the lumber mentioned in the previous contract, was to be inspected on the dock at the place of delivery; at least one hundred and fifty thousand feet of the lumber mentioned in the previous contract was to be delivered by May 1, 1867.
    Plaintiff’s counsel then offered evidence tending to show the amount of lumber received by plaintiff under said contract; the sums of money advanced to defendant by plaintiff; and the damage to plaintiff by the non-delivery of a portion thereof under the contract.
    On the cross-examination of said plaintiff, he testified, tending to show that there was not an agreement subsequent to that of January 9th; that said lumber should be inspected at defendant’s mill, in lots of fifty thousand; that he did not go to defendant’s mill and inspect part of said lumber, and did not, at that time, pass upon it, and say it filled the contract.
    Counsel for defendant then asked the plaintiff:

      Question: In looking over this lumber at defendant’s mill, did you not tell Mr. Huntress that it was all right, and would fill the contract (referring to the one inch sycamore)? To which question counsel for plaintiff objected as irrelevant. The court sustained the objection, and counsel for defendant then and there excepted.
    Counsel for plaintiff then re-examined said plaintiff and offered evidence tending to show that defendant agreed with plaintiff, that one Hough should inspect said lumber, in the place of Warriner, who could not attend to it, and that Hough did inspect the same, under a written order from the defendant, and rejected a large amount thereof. Counsel for defendant objected, because the said evidence would tend to prove another and different contract from that set up in the plaintiff’s declaration; which objection was overruled, and said evidence admitted. Defendant excepted.
    Counsel for plaintiff, as part of his testimony to prove damages, called Samuel Walker, who, being duly sworn, testified that he was engaged in the lumber business, and had been for a number of years; that he lived and did business at Wayne, Michigan, and that he knew the market value of white wood lumber of the description in contract “B,” on September 1, 1867; and that the market value was $30 per thousand. On cross-examination, witness stated that he did not know the market value at Detroit, but that $30 was the market value in Wayne, and that it would be higher in Detroit.
    Plaintiff then rested, and counsel for defendant called Joel S. Huntress, who, being sworn, testified that he had sawed and examined, at the defendant’s mill, the quality of the one-inch sycamore, in said contracts mentioned. Counsel for defendant then offered evidence by said witness, tending to show that there was an agreement by parol, prior to April 9, 1867, between plaintiff and defendant; that the lumber mentioned in the contract of January 9, should be inspected at defendant’s mill; that plaintiff did' inspect a portion thereof at that place prior to said April 9, and pronounced it correct.
    Counsel for plaintiff objected on the ground of irrelevancy. The objection was sustained, and the defendant excepted.
    Counsel for defendant then offered evidence tending to show that defendant had sent into Detroit, and delivered on the dock according to contract, the whole quantity of sycamore lumber within the time proscribed by the contract, and of quality and description in all respects as called for by said contracts; to which counsel for the plaintiff objected on the ground that the inspection of the inspector was binding- and conclusive on the parties in the absence of fraud, which objection was sustained, and defendant excepted.
    The defendant then introduced further evidence tending to show that defendant had not received or accepted any of the lumber which was rejected by the inspectors, or any of that which was delivered at the dock and not inspected. There was also evidence in the case tending to show that the lumber was brought in and unloaded under plaintiff’s orders; that the plaintiff declined to inspect a quantity of the one-inch sycamore lumber-, because there was 'thin lumber on top of it; and defendant’s counsel offered evidence tending to show the amount of said lumber which was not inspected, and that it was in all respects up to the requirements, as to quality and dimensions, of the contract; to which plaintiff’s counsel objected, and the court sustained the objection, and defendant excepted.
    Whereupon the testimony and arguments of counsel being closed, the defendant requested the court to charge the jury»

      1. “That the written contract of April 9 changes the payments and mode of delivery from the manner prescribed in the contract of January 9, and alleged in the plaintiff’s declaration, and that, therefore, the jury must find for the defendant,” which the court refused, and the defendant excepted thereto.
    The defendant also requested the court to charge the TO
    2. “'That the contract for the sycamore lumber, as proved by the plaintiff, was as to the mode of inspection, a different one from that set forth in plaintiff’s declaration aird there can be no recovery under the declaration in this action by the plaintiff;” which the court refused, and the defendant excepted thereto.
    The defendant also requested the court to charge the TO>
    3. “If the jury find under the charge of the court, that the contract for the sycamore lumber, as proved, is a different contract from the one set up in the plaintiff’s declaration, then the plaintiff can not recover under his declaration, and their verdict must be for the defendant;” which the court refused, and the defendant excepted thereto.
    The defendant also requested the court to charge the TO>
    4. “If the jury find that one Walker did not know the market value, in Detroit, of white wood, they must reject his testimony as to what such value was,” which the court refused, and the defendant excepted thereto.
    But the court charged that the jury were at liberty to consider the testimony of Hr. Walker, inasmuch as he testified to the value of lumber at Wayne, and that it was higher in Detroit; to which the defendant also excepted.
    The jury returned a verdict for said plaintiff for damages in the sum of SI,500.

      D. B. & II. M. Dujjidd, for plaintiff in error.
    1. An agreement to pay on the happening of a certain event is rescinded by the mutual agreement of both parties that such event shall not happen.
    Where no agreement. is-made as to the time when the price of goods is payable, it is payable on the delivery of the goods. — 1 Pars. on Cont. (5th Ed.) p. 535.

    And there being no agreement as to the amount to be paid on the delivery of the goods, the whole was then due and payable.
    The second contract, therefore, provided for an entirely different mode of payment, both in time and amount, from that alleged in the plaintiff’s declaration.
    But the payment by the defendant in error, or more correctly Ms agreement to pay, is the consideration of defendant’s promise.
    The statement of the mode of payment is therefore descriptive, and must be proved literally as laid.
    Any variance is fatal.— 1 Greenlf. Ev. § 68; 3 Wend. 374; 7 Johns. 322; 36 Miss. 458; 27 Ala. 542; 1 Mich. 487; 13 Id. 113.

      2. The plaintiff had sworn, on his cross-examination, that there was no agreement subsequent to that of January 9th, that the lumber mentioned in the January 9th contract should be inspected at the mill of plaintiff in error; that he did not go to said mill and inspect part of said lumber; and did not at that time pass upon it, and say it filled the contract. Such an agreement was alleged by the defendant below, and the action of defendant in error thereunder was sought to be proved. This question was entirely irrelevant.
    If there had been such an agreement, and plaintiff below had acted upon it, and accepted a quantity of lumber, clearly we were entitled to show it, and if we could prove it, we had a right to cross-examine the plaintiff below concerning it, and if lie denied it, to lay the foundation of impeachment. The record shows that the agreement was sought to be proved by defendant in error, but the court excluded the evidence.
    3. The declaration alleges that the sycamore lumber was to be inspected by Wm. E: Warriner, or some competent inspector whom he should choose.
    No alteration or modification of this agreement is alleged.
    It is a material allegation. Under it the court held us concluded by the inspection of the lumber in the absence of fraud.
    There is no pretense that Warriner chose Hough to inspect said lumber. Hough’s authority to inspect was based by the defendant below solely on the alleged subsequent agreement between the parties.
    If the plaintiff below set out this agreement for inspection with particularity, he must prove it as laid; otherwise, and as was actually the case, the plaintiff' would, on the trial, put in testimony to prove an agreement of the defendant below to abide by an inspection of which he has no knowledge, and has no reason to expect would be sought to be proved.
    The following authorities conclusively sustain this point 1 Greenlf. Bv. §§ 66, 69; 10 Johns. 418; 8 Day’s R. 283; 36 Miss. 458, above cited; 5 Blackf. 162; 8 Barb. 327; 3 La. 418; 15 Id. 365.

    4. Defendant below offered to show that there was a parol agreement, prior to April 9th, that the lumber mentioned in the contract of January 9th should be inspected at defendant’s mill, and that plaintiff below did inspect a portion thereof, at that place prior to April 9th, and pronounced it correct. This the Circuit Judge excluded. There was no place of inspection mentioned in the contract of January 9th.

      Even if there is anything in that contract fixing a place of inspection, it might be changed by a subsequent and distinct oral agreement. — 1 Greenlf. Ev. § 303.

    Especially where such new agreement was partly performed by the plaintiff below. — Id. §304.

    5. The inspection was not conclusive.
    We readily admit the correctness of the doctrine that where parties refer the decision of any matter to a third person, and agree that his decision shall be final, they are bound by it. But in this case there is no agreement that the decision of the inspector should be final. It ivas simply “subject to inspection.” The inspection 'was not made any thing but prima facie; and while we admit that it was entitled to great weight, and that the jury should be instructed to accept it as correct, unless, they were clearly satisfied by strong proof that it was erroneous; yet we contend that the defendant below had a right to give other evidence to the jury to show that it was not correct.
    The great majority of cases which are found in the books bearing upon this point, are instances in which the referee’s decision was made final by1 positive stipulation. These, we contend, are not in point.— 48 Penn. St. 161; 1 Comst. 318; 10 Bosw. 130.

    6. The plaintiff below having refused to inspect the lumber which was underneath the thin lumber, the defendant below had the right to charge him with that amount of lumber; and certainly to prove the amount of said lumber, and that it conformed to the requirements of the contract. The lumber was brought in and piled under the directions of the defendant in error.
    The delivery of the lumber under the control of the defendant in error, ready for inspection, and his declining to inspect, was a sufficient tender to satisfy the contract.
    Plaintiff in error never received or took back said lumber, but left it where he delivered it; he could, therefore, lawfully charge the plaintiff below with that amount of lumber. But he asks less, and simply claims the privilege of showing that said uninspected lumber was, in all respects, up to the requirements of the contract. Clearly he should be allowed to.do this.— 24 Barb. 283; 14 Conn. 479; 31 N. Y. 462; 2 Watts & Sergt. 26; 5 Mass. 67.

      Moore é Griffin, for defendant in error.
    1. Suit is brought upon two separate contracts. Tbe latter, however, refers to the former, and modifies it. The general rule that contracts made at same time, between same parties, with reference to same subject matter, are to be construed together, applies, though the contracts are executed at different times.— 17 Ill. 466; 22 Penn. St. 454.

    Besides, nothing was done under either of these contracts until the execution of both. They may, therefore, be considered as executed at the same time, though bearing different dates.
    It is necessary to set forth in the Declaration only such portions of a contract as affects a recovery. The same rule applies to a count.
    Construing them together, each contract is declared upon, according to its legal effect. This is sufficient by the well established rules of pleading.
    2. The inspection of Warriner was a condition precedent to the acceptance of the lumber.- This provision was mainly for the benefit of defendant in error, who was'not willing to rely on his own judgment. Such inspection was conclusive.— 24 Me. 215; 25 Id. 401; 29 Id. 346; 8 Watts and Serg. 365; 22 Ill. 53; 6 McLean, 248; 4 Duer, 295; 4 Cush. 378; 9 Bos. 1; 1 Blackf. 476; 22 Png. L. and Eq. 557.

    Any other view of -the contract would nullify the provi-, sion as to inspection.
    If the language of a contract is ambiguous, it must be understood in a sense in which it Avill have some effect. In its construction, courts will endeavor to avoid what is unequal, unreasonable, and improbable.— 8 Porter (Ala.), 497; 16 La. An. 201; 11 Vt. 490; 14 Id. 311.

   Christiancy J.

The contract of April 9 was properly admitted in evidence. It did not change the mode or rate of payment mentioned in the prior contract of January 9.' By the prior contract one hundred thousand feet of the lumber were to be delivered by the 15th of May, and payments to be made as follows: Eighty per cent, on each lot of fifty thousand feet, and the balance on delivery of the whole amount. By that of April 9, one hundred and fifty thousand feet of the lumber mentioned in- the prior contract were to be delivered by the first day of May, and it is silent as to the mode or rate of payment for this lumber.

We can not assume, as the counsel for the plaintiff in error seems to have done, that the one hundred and fifty thousand feet must all be delivered at once. On the contrary, it is much more probable, in the ordinary course of such business, that it would be delivered in parcels less than the whole; and there would then be successive periods in the course of delivery, at which the lumber delivered would amount to fifty thousand feet.

If this would not be so under the last contract, it would not under the first.

If the quantity delivered up to any particular period amounted to more than fifty thousand feet, the excess would not be counted until it amounted to another fifty thousand.

The court properly excluded the evidence tending to show that prior to April 9 (the date of the last contract), there was an agreement by parol between plaintiff and defendant that the lumber mentioned in the contract of January 9 should be inspected at defendant’s mill, and that plaintiff did inspect portions of it there prior to April 9, and pronounced it correct. The contract of April 9 was in writing, and expressly provided that this same lumber (mentioned in the contract of January 9) should be inspected on the dock, at the place of delivery in Detroit, and (in effect by reference to the contract of January 9) that the inspection should be made by W. E. Warriner, or some competent inspector he might choose. If the parties are not to be understood to have merged all prior verbal understandings or agreements in the subsequent written agreement upon the same subject matter, there can be little use and no safety in written contracts.

It seems that in attempting to carry into effect the provision for inspection, it was found that Warriner could not attend to it, and the plaintiff gave evidence tending to show that, instead of having Warriner choose an inspector, the parties themselves agreed that one Hough might inspect the lumber in place of Warriner, and that he did inspect it under a written order of the defendant. This evidence was objected to on the ground that it tended to prove another and different contract from that set out in the plaintiff’s declaration, which followed the written contract, alleging that the lumber was to be inspected by Warriner, or some competent inspector he should choose.

We do not think this new substitution of one inspector for another, in the course of performing, or attempting to perform, the contract, constituted such a material variation of the substance of the contract as should require it to be set out in the declaration; nor do we think the proof of it can be treated as a variance, or that the defendant could have been surprised or misled by it. The substance of the contract, or the essential obligation created by it, was, on the one side, the delivery of certain amounts of lumber of the specified descriptions, and, on the other the payment of the agreed price. The inspection was the test agreed upon for determining whether the lumber met the calls of of the contract. It was binding, it is true, unless waived or modified by the parties. But it might be waived, in whole or in part, or another inspector substituted, without altering the essential obligations of the contract. In an action for not accepting goods sold, where the declaration averred that the defendant bought of the plaintiff a certain quantity of rice, according to certain conditions; and it appeared in evidence that, in addition to these conditions, the rice was sold by sample; it was held not to constitute a variance, the words “per sample” not being a description of the commodity sold, but a mere collateral engagement that the goods should answer the description of a small parcel exhibited at the sale.— Parker et al. v. Palmer, 4 B. and Ald. 387, and see Clarke v. Gray, 6 East, 564.

The plaintiff, in the present case, set out copies of the two written agreements in his declaration, instead of describing them by their legal effect; but he did not allege, and the nature of the action did not require him to allege, whether the lumber was inspected or not; nor was any breach assigned upon this provision. The gist of the action, and the only breach assigned, was the non-delivery of the lumber. The question of actual inspection could not therefore arise upon the pleadings; and, as a matter of proof, the evidence of inspection would naturally come from the defendant, in the attempt to show performance.

Such incidental matters of waiver or substitution frequently arise in executing the provisions of contracts; as, for instance, a contract for the delivery of so many bushels of first quality of wheat, or so many cords of a particular kind of wood; the parties may mutually assent that a certain number of bags shall be taken for so many- bushels, instead of measuring or weighing it, or that a certain number of loads shall be received for a certain number of cords; and the party who is to receive the article may assent to receive an article somewhat inferior, as a performance of a stipulation for a better. And many such unimportant changes may occur under a single contract. In the present case the parties might have agreed upon a different inspector for each load, as it arrived. But to require all such incidental variations, arising in the course of performance, to be stated in the declaration, as a part of the contract, would lead to great prolixity without any corresponding benefit.

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

The witness Walker, on the part of the plaintiff below, testified that he was engaged in the lumber business at Wayne (which is some eighteen miles in the interior, by rail road, from Detroit), and knew the value of such lumber at Wayne, which he stated to be $30 per thousand feet. He stated that he did not know the market value at Detroit, though it would be higher at Detroit.

This testimony bore upon the question of damages. The defendant requested the court to charge the jury that, if they should find Walker did not know the market value of the lumber at Detroit, they must reject his testimony as to what such value was.

As it was not, and is not pretended that lumber was as high in Wayne as in Detroit, it is quite clear that the tendency of this evidence was to fix the damages below, rather than above what the plaintiff was entitled to recover. It-could not prejudice the defendant. The instruction was, therefore, properly refused.

But we think the court erred in rejecting the evidence offered by the defendant below, showing the amount of lumber delivered which the plaintiff refused to inspect, and that it was, in all respects, up to the requirements of the contract, as to quality and dimensions. “ The evidence tended to show that the lumber was brought in and unloaded under the plaintiff’s orders, and that plaintiff declined to inspect (by which we understand he declined to have it inspected as the other lumber was) a quantity of the one inch sycamore lumber, because there was thin lumber on top of it.” If this thin lumber interfered with or prevented inspection, the plaintiff below would seem to have been responsible for that impediment, and should have removed it; and by failing to do so (so far as appears) before he brought his action, we think he absolved the defendant from this stipulation of the contract, and left him at liberty to prove, if he could, the quantity of such lumber, and that it was such as met the calls of the contract.

For this error the judgment must be reversed, with costs to plaintiff in error, and a new trial awarded.

The other Justices concurred.


author: Campbell J.

text:
    Daniel B. Van Valkenburg et al. v. Hial B. Rogers.

      Bill of exceptions: Settlement of after death of party. A bill of exceptions is not irregular, although signed and settled after the death of the opposing party, and before there has been any revival of the judgment. If regular notice has been given to the administrator to attend such settlement, no further steps can be required to complete it; but if such notice is not given, an opportunity may be granted on cause shown to obtain amendments.
    Where a judge has gone out of office after signing a regular bill of exceptions, it will not be disturbed, but will stand as a part of the record for review.

      Writ of en'or. Death of party. A writ of error may issue without any steps to revive the judgment, where the party prevailing in the court below has died since judgment; and, in such case, steps may be taken after the return of the writ to bring in the representatives by scire facias, or by the process provided by rule of court.

      Heard and decided October 7th.

    Error to Bay Circuit.
    This was a motion to strike out the bill of exceptions, and to dismiss the writ of error.

      It appeared that, on the 5th day of September, 1867, the defendant in error, Eogers, recovered a judgment against plaintiffs in error for the sum of $1,548.75 and costs, in the Bay County Circuit: Judge Walker presiding at the trial. During the term, the plaintiffs in error procured an order extending the time for the settlement of a bill of exceptions until the 1st day of November, 1867. On the 9 th day of September, 1867, the Circuit Court adjourned without day. About the 7th day of October, 1867, Eogers died. Elizabeth Eogers was duly appointed administratrix of the estate of said Eogers, and took out letters of administration. Plaintiffs in error thereupon served notice of settling a bill of exceptions on Eogers’ attorneys, and on the administratrix, and April 15, 1868, Judge Walker settled the bill of exceptions out of court. At the time of the settlement, Eogers’ attorneys appeared and objected to the settling of the same, upon the ground that Eogers was dead. The bill of exceptions was fded, and a writ of error was issued, which was in the same form as if Eogers were alive, but a copy of it was served on the administratrix, as well as on Eogers’ attorneys. The record, including the bill of exceptions, was returned to the Supreme Court.

      T. G. Grier, for the motion.
    The statute provides for suggesting the death of record, in case the party shall die before judgment, and for the prosecution of the claim thereafter by the executor or administrator. But no provision is made for cases where the party dies after judgment. And it seems to follow, from the reading of the statutes-, that in them there exists for such cases at least an instance of casus omissus. And by the wording of the statute it seems that a writ of error to an executor or administrator in a case like this can not be taken, for it provides that “In no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against airy executor or administrator.” — Comp. L. 897.

    A writ of error is an action. It is a new action, and is not the same action as the one the record of which is by means of it revived. And a writ of error is not provided for in the chapter referred to. By which it seems to follow that where a party dies after judgment, and the writ of error is not issued before his death, the opposite party is without further remedy. Of course, if the writ of error is issued before the death of the party and he dies afterwards, this difficulty would not exist, for scire facias, which is not a new action but a continuation of the old, would continue the former action in force. ;
    At least no writ of error could legally issue until the judgment should be revived in favor of the administratrix, and that the bill of exceptions is void, and can not be heard, for the reason that it was settled after the death of the plaintiff and after judgment, and not during the term it was rendered. No proceedings by scire facias had been taken, and even an execution can not be issued after the death of the plaintiff without scire facias.

    The defendants should have caused the judgment to have been revived by scire facias in favor of the administrix before a bill of exceptions could be settled or a writ of error issued to her. What judgment was there to settle a bill of exceptions upon until it was revived? The admintrators are not connected with the judgment until they are made parties to it by scire facias, and it is a principle of the common law that new parties to a judgment must be added by scire facias.— 2 Tidd’s Pr. 1114, 1118; 1 Lord Raymond, 245; 28 Geo. 516; 20 U. S. Dig. 27; 8 B. Monroe, 553; 17 Johns. 271.

      ■ By our statute, the writ of error is to be governed by the common law (except so far as prescribed by statute), as modified by the practice and usage in this state, and such general rules as shall be made by the Supreme Court.
      2 Comp. L. 1400; 13 Ala. 459; 9 U. S. Dig. 226; 15 Ohio, 300.

    The administratrix was not a party to the suit or judgment, and notice to her would be invalid until the judgment was revived in her name.
    ' If a writ of error can be taken at all in such a case the only course that could be taken, would be to have the judgment revived by scire facias in the name of the administratrix; get the judge to allow further time to settle the bill of exceptions; settle the bill of exceptions, and then take writ of error to the adminisiratrix.
    Where a defendant dies after judgment, a writ of error, in which his administrator is made a party by the clerk on the production of the letters of administration, will be quashed.— 2 U. S. Dig. 179, 180; 18 Id. 47, 48; 2 Stew. 462; 4 Cow. 457; 1 Green, 193; 5 Cal. 214; Hardin, 201; 9 Pet. 483.

    Writs of error do not abate by the death of the defendant in error; and the personal representatives may be admitted to defend; but if they do not come in voluntarily, scire facias must issue to compel them.— 6 Wheat. 260.

      Wm. L. Webber, and H. H. Hatch, contra.

   Campbell J.

We think there is no ground for the motion. The bill of exceptions was regularly signed, and the representatives' of Rogers received full notice, and had an opportunity of presenting their amendments, if they had any. There is no claim that the bill is not correct in fact, and the judge’s signature is of itself evidence of this, as the bill must necessarily relate to matters on which he personally passed. In ordinary cases, and where the judge remains in office, a bill which is signed by him, without notice to the representatives of a deceased party, would, of course, be open to amendment, upon a proper application; but, as notice is all that is necessary to protect their rights, and as they have had it in this case, and attended under protest and proposed amendments to the bill, there is -no ground of complaint. But here the judge is now out of office. And we held, in Scribner v. Gay, 5 Mich. 511, that a bill signed could not be remanded for amendment after the judge who allowed it had ceased to hold office, but must stand as correct; and we there referred to the practice, which has been approved, of granting new trials, where a party by such change has been, without fault, deprived of his bill. The granting of a new trial only puts the parties to the necessity of having a new hearing, and does not produce any evil beyond inconvenience, and is a better alternative than depriving an innocent party of a legal ground of redress in a court of review.

But here we do not think there has been any irregularity, and Yve do not regard our action as in any way extending favor or lenity. We sustain the bill as regular.

We also think the writ of error was regularly sued out and returned. By the common law practice, a scire facias acl audiendum errores was necessary after the writ was returnable, and under that the representatives of a deceased party could be brought in. We think that course - would be regular here. But, inasmuch as in ordinary cases we have provided a more summary practice, by filing and serving an assignment, we propose, now that the matter has been brought to our attention, to adopt rules which will apply to such cases as the present, and the parties can, if they please, follow them, instead of resorting to the somewhat inconvenient writ of scire facias.

The proceedings, however, being regular throughout, the motion must be denied.

The other Justices concurred.


text:
    Theodore Romeyn v. Daniel J. Campau.

      Account rendered:' Effect qf rejection. Where the correctness of an attorney’s account, for services rendered, was denied hy his client and entirely rejected: Held, that, in a suit for the same, he is not precluded from showing their full value, regardless of the account so rendered.

      Heard October 8th,

      Decided October 10th.

    Error to Wayne Circuit.
    This was an action to recover the value of services as an attorney.
    The declaration was upon the common counts.
    The bill of particulars showed services to the amount of $2,650.
    The case was tried by the court without a jury, and judgment rendered for plaintiff in the sum of $355.
    It appeared, on the.trial, that plaintiff had rendered a bill to defendant, purporting to cover all charges, amounting to $355; also that defendant had refused to pay the same.
    The main question was whether plaintiff was bound by the sum mentioned in the bill so rendered to defendant.

      James W. Romeyn, for plaintiff in error.
    1. Under the circumstances of this case, as found by the court, the plaintiff should not have been concluded by his account from recovering the value of his services.
    2. If the account concluded him as to the value of the specified services, he should have been allowed to show other services omitted in the account, such as the general retainer, and other items, because,

      a. The account was presented in expectation of immediate payment in cash, and on such understanding.
    Z>. The services were, in truth, worth more than the sums charged.

      c. The account did not in terras profess to set forth all the charges which the plaintiff had a right to make, and which he would have made if he had foreseen that he-would have to terminate his professional relations with the defendant, and sue for the value of his services.
    The case of Loveridge v. Botham, 1 Bos. and Pul. 49, was not argued by counsel. It was not a suit of any kind. It was but an ez-parte application to the court.by the taxing officer for instruction.
    On the other hand, see the cases of Williams v. Glenny, 16 N. Y. 389; Miller v. Beal, 26 Ind. 234.

      Walker S Kent, for defendant in error.
    The plaintiff was bound by the amount claimed in his account rendered.— 1 Bos. and Pul. 49; 33 Miss. 667; 12 Ala. 796; 16 N. Y. 389; 26 Ind. 234.

    A receipt in full of an account, though considered only prima facie evidence, is conclusive, where neither mistake nor fraud can be shown. — 1 Pet. C. C. 182.

    It can not be impeached by showing that the amounts charged in the account were less than the value of the services.— 4 Wash. C. C. 562.

    A deliberate admission of the correctness of the accounts of an executor by an heir was held conclusive in Succession of Ross, 1 La. An. 129.

    For cases where admissions are held conclusive on the ground of public policy, see 1 Greenlf’s Bv. § 210.

   Graves J.

It appears from the record that prior to the 28th of December, 1867, the plaintiff acted as the attorney and legal adviser of the defendant in error, on numerous occasions, and respecting interests of great pecuniary importance; that a few da3rs before the time just mentioned, he applied to the defendant for the payment of a sum of money, on account of his services, and informed him that he was then in want of money, when the defendant requested him to send in his account, and stated that he expected to pay all his accounts on the first day of January; that subsequently the defendant desired the plaintiff “to make out his account at a low figure, as he expected to pay the money;” that the plaintiff, on said 28th of December, sent to the defendant an. account for services from and including the 21st of January, 1867, to and including the succeeding 21st of December, and amounting to $405, and containing a credit, to be deducted, of $50.

It further appears that the defendant refused to pay the account, and that the plaintiff thereupon brought this action to recover the real value, of the services he had actually rendered.

Upon the trial, before the court without a jury, the plaintiff sought to recover for services not specified in the account before mentioned, and also larger prices than were therein charged for services which were there particularized.

The defendant contended that the plaintiff was bound by the account delivered, and that he could not exceed the charges there.made.

Upon this subject the findings of the court upon the facts, and the conclusion of law thereon- are stated as follows :

■ “In relation to the account rendered December 28, 1867, I find:
“1st. That the services therein charged were actually rendered at the defendant’s request.
“2d. That none of the charges are unreasonably large.
“3d. That the plaintiff? in relation to some of the services rendered, taking into consideration the magnitude of the interests .involved, his own experience, ability, and eminence at the bar, would have been fully justified in charging a considerably larger sum than he did charge, and that such services were reasonably worth a larger sum.
“4th. That the account of December 28, 1867, ivas made out with an expectation of a speedy payment thereof, and with reference to such expectation the charges for services were made low, and lower than they would have been made had legal proceedings- been contemplated; but it was not made out as an offer for a compromise, for as yet no question for compromise had arisen.
“5th. That said account was made out and rendered on the part of the plaintiff with the expectation that if paid it would be in full of all professional services and charges against th.e defendant to the date thereof.
“ 6th. That there was no evidence tending to prove that there was any mistake or accidental omission in making out said account, and I find the plaintiff charged all he intended to charge.
“7th. The defendant refused to pay the account thus rendered; whereupon the plaintiff brought this action, and now claims, by his bill of particulars and his evidence upon the trial, a very much larger sum for the same services charged in the said account than is there charged; and also claims for professional services for which no charge is there made, and particularly for a general retainer of a date prior to the receipt of January 19, 1867.
“Under the facts thus found, I find, as matter of law, that the plaintiff is precluded, by the account thus made and rendered, from recovering for any services except those therein charged, or beyond the amount therein charged.”

The court thereupon awarded judgment for the plaintiff for $355 damages and interest from the rendition of the account, making $365 in all.

It is now urged before us, by the plaintiff in error, that the Circuit Court erred in holding that, as matter of law, the rendition of the account was a bar to his right to recover for any services except those stated in the account, or for any amount beyond that charged therein. It is seen t hat the court found, as matter of fact, that the services of tlie plaintiff were reasonably worth much more than the price stated in the bill rendered; and the correctness of this finding has not been disputed and can not be reviewed.

We have to pass only upon the question of law, raised by the ruling, to which the plaintiff excepted. That the account furnished to the defendant, was legal and persuasive evidence, for the purpose of the trial, of tlie extent and value of the plaintiff’s services, has neither been denied nor doubted; and it is equally certain that it was matter of evidence merely, to be finally weighed and considered by the court in order to ascertain and settle those facts.

It is conceded, on the part of the defendant in error, and correctly, that the delivery of the bill in no manner impaired his light to resist the claim made -by it, or any other; and we think that, having denied its correctness and rejected it altogether, and having continued to act in the spirit of such denial and rejection, even to the point of obliging the plaintiff to vindicate his rights by action, the latter was not precluded by law from recovering beyond the services and prices specified in the bill repudiated by the defendant.

As the ruling in question, on the point of law, reduced the recovery below the amount which the court, as matter of fact, found the plaintiff’s services to have been reasonably worth, we think it was erroneous, and that the judgment should bo reversed, with costs, and a new trial ordered.

The other Justices concurred.


author: Cooley Oh. J.

text:
    Charles S. Maxon v. Patrick J. Perrott.

      Alias writ of replevin. Where an alias writ of replevin was issued for the remainder of certain goods described in the first writ, and plaintiff recovered judgment: Me?, that, even were the writ invalid, the subsequent proceedings, up to the judgment, must be sustained, as being in accordance with the provisions of the statute; and that the defendant could not complain, since it was the same judgment which would have been rendered had no alias writ been issued. Comp. L. %508k.

      Replevin: Change of possession. Certain property was seized under attachment; an inventory made, and a portion of the same packed up in a trunk, but left • in the office of the owner; some of the goods were also removed, and the key to the office was retained for a time by the officer. In an action of replevin for the same: Mí?, that the change of possession was sufficient to justify the writ.
    Dentists’ tools: Exemption on execution. Under the statute — 2 Comp. L. %M9U— the tools of a dentist come within the meaning of “mechanical tools,” and are therefore exempt from execution upon a judgment for the purchase pp'ice thereof.

      Beard October 8th.

      Decided October 13th.

    Case made from Bay Circuit.
    This was an action of replevin, brought to recover possession of certain dental instruments, which, had been levied upon by an execution under a judgment for the purchase price thereof.
    Judgment was rendered for plaintiff.
    The facts are stated in the opinion.

      T. C. Grier, for plaintiff.
    1, Exemption statutes should be liberally expounded to effect the humane object in view.— 25 Wend. 370; 34 Barb. 364; 10 Mich. 538, 546; 24 Conn. 338.

    The tools of a dentist come within the meaning of “mechanical tools” under the statute, and are therefore exempt from execution- 15 Barb. 568; 27 Id. 505; 29 Id. 388; 3 Abbott’s Pr. 406; 3 Abbott’s Dig. 31; 17 How. Pr. 80; 4 Conn. 450; 13 Mass. 82; 5 Pick. 80; 10 Id. 424.

    2. It is claimed that the property in question was, at the time it was replevied, so in the possession of the plaintiff that under the doctrine laid down in Hickey v. Hinsdale, 12 Mich. 100, the plaintiff can not maintain his action. But the Supreme Court decided that case upon a finding that the officer “did not in fact remove the goods from the house, but that he made no release thereof, or of any part of them from said levy, but left the house and property as he found it, still claiming the property by virtue of said levy.
    In the case at bar, the displacement of the possession of the goods was complete. The levy was followed by an inventory, a removal of a portion of the goods from the office, the packing up of the remainder in a trunk, and the locking up of the office.

      Isaac Marston, for defendant.
    Under our statute, “the tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things, to enable any person to carry on the profession, 'trade, occupation, or business in which he is wholly or principally engaged, etc., are exempted from execution. — 2 Comp. L. $ 4465, 4494 — except that mechanical tools and implements of liusbaudry shall not be exempt from any execution issued upon a judgment rendered for the purchase money for the same property.
    The property levied upon in this case, were dental tools. They are not exempt from execution.— 7 Abbott’s Dig. 297; 9 Iowa, 320; 31 Miss. 2.

    2. The plaintiff in this case can not maintain replevin for any of the property, except the case of dental instruments, because it was in his possession at the time the writ was issued.— 12 Mich. 102; 24 Pick. 25; 2 Greenlf. Ev. $ 499

    3. This case of instruments was taken on an alias writ of replevin; and as an alias writ of replevin can not be issued, in this state, wo are entitled to a return of that case.

      At common law, if the distress were carried out of the county, or concealed, then the sheriff may return that the goods, or beasts are eloigned, carried to a distance, to places to him. unknown, and thereupon the party replevying shall have a writ of Gapias in Withernam, etc., which is a command to the sheriff to take other goods of the distrainor, in lieu of the distress formerly taken.— 3 Black. Com. 149.

   Cooley Oh. J.

Maxon brought replevin against Perrott for a case of dental instruments; a tool chest for the purpose of keeping dental instruments in; a vulcanizer, and the apparatus connected therewith; a dental lathe, and the apparatus used with the same, and many other instruments and conveniences employed by the plaintiff in his business as a dentist, together with the carpet covering the floor in his office. A part of the property only was found by the officer and taken on the writ 'of replevin, and the defendant then sued out an alias writ, under which the remainder was replevied. The defendant pleaded the general issue, and justified his taking of this property from the plaintiff, by virtue of an execution issued on a judgment against the plaintiff in favor of one White, which execution was directed and delivered to the defendant, as sheriff of the County of Bay, for service.

The court below gave judgment for the plaintiff.

Several errors are assigned upon the record.

1. It is insisted that under our statute there is no authority to issue an alias writ of replevin, and that consequently thp defendant is entitled to a return of the property seized by.virtue of that writ. We do not think, however, that this consequence would follow from the premises. The statute— Gomp. L. § 5017 — provides that, if the property described in the writ of replevin is not found by the officer, the plaintiff may, nevertheless, proceed in the action, and. by another section, if he shall recover on the whole record, he is to be entitled to a further judgment, that the goods and chattels not found, be replevied and delivered to him without delay — § 5084-

If, therefore, we concede that the alias writ was invalid, we must nevertheless sustain the subsequent proceedings, up to the judgment, as in all respects in accordance with the statute, .and the error in the judgment, if any, is one of which the defendant can not complain, since it is the same judgment which would have been rendered had no alias writ issued, with the omission of the clause for further replevin, which the plaintiff would have been entitled to had he requested it. We have repeatedly held that we would not reverse a judgment for an error in no particular affecting injuriously the interests of the party complaining.

2. It is claimed that the present action can not be maintained as to the most of the property, for the reason that the plaintiff was in possession of such property at the time the writ of replevin was sued out. The facts upon which this objection is based, are as follows:

The suit in favor of White against the plaintiff, was commenced by writ of attachment, which was served by defendant by seizing the property and making the usual inventory. The property at the time was in the plaintiff’s office, and the plaintiff was present. Defendant packed up some of the property in a trunk or chest in the office belonging to the plaintiff, to which there were two keys, one of which was taken by defendant, and the other left with plaintiff. None of the property was removed from the office except the case of dental instruments. The defendant, after completing the attachment, locked up the office and carried away the key, but, within a week thereafter, delivered the key to one of the plaintiff’s attorneys, but with the understanding that he should thereby lose no rights acquired by his levy, and he never relinquished his levy, but always insisted upon retaining it. The plaintiff did not again go into the office until lie went with the officer who served the replevin. It appears that the reason of the defendant for delivering the key to plaintiff’s attorney, was that he might not be supposed to claim rights in the plaintiff’s leasehold, interest in the office; upon which he had made no levy of his writ.

We do not think that upon this state of facts the plaintiff is to be considered as having been in possession of the property, or any part of it, at the time the writ of replevin was served. The defendant had for all purposes effectually displaced his possession; and although, after the key to his office was delivered to his attorney, it would have been in his power, to enter the office, open the trunk and remove the property left therein, yet it is evident this could not have been done without a violation of good faith, nor if the attachment was valid, without rendering the defendant liable to the officer in trespass. Of the articles in the trunk •the plaintiff had no possession, either actual or constructive, and it does not even appear that his retention of a key thereto was with the consent or knowledge of the defendant. The case of Hickey v. Hinsdale, 12 Mich. 102, upon which the defendant relies on this branch of the case, differs essentially from the present, inasmuch as in that the officer had not interfered with the property except to make an inventory and appraisal, but had left the possession undisturbed.

3. The main question in the case relates to the case of dental instruments, which the plaintiff claims were exempt from execution, while the defendant insists they were liable to be taken in execution on White’s judgment, inasmuch as that judgment is shown to have been rendered for the purchase price of the same instruments.

The question on this branch of the case is one of statutory construction. The statute' — Comp. L. §4465, subd. '8 — provides for the exemption from levy and sale under any execution, of “ the tools,. implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things, to enable any person to carry on the profession, trade, occupation or business, in which he is wholly or principally engaged, not exceeding in value $250.”

In 1819, the legislature passed an act .amendatory of this subdivision, the second section of which is as follows:

“The property exempted in the subdivision of which this act is amendatory, excepting mechanical tools and implements of husbandry, shall not be exempt from any execution issued upon a judgment rendered for’ the purchase money for the same property.” — Comp. L. $4494-

The question which this case presents, is whether the case of dental instruments is covered by the term “ mechanical tools” or not; it being clear that, if not, these instruments were subject to the levy of-the execution in question.

The counsel for the defendant has argued this question Avith no little ingenuity and subtlety, and it is certainly not easy to determine precisely what the legislature meant by the Avords in question. It is quite possible that the legislative design was simply to protect the agricultural and mechanical callings, and that tools necessary in the occupations of other persons Avere not m'eant to be exempted, notwithstanding they might properly be designated as mechanical tools.

I do not deem it necessary, howeArerj to enter upon a critical examination of the Avords employed in the statute, as my brethren are all of the opinion that under any construction which could be reasonably gÍAren to the Avord “mechanical,” as here used, the tools of a dentist must be included. A dentist, in one sense, is a professional man, but in another sense his calling is mainly mechanical, and the tools Avhich he employs are used in mechanical operations. Indeed, dentistry Aras formerly purely mechanical, and instruction ih it scarcely Avent beyond manual dexterity in the use of tools; and a knoAvledge of the human system generally, and of the diseases Avhich might affect the teeth and render an operation important, was by no means considered necessary. Of late, however, as the physiology of the human system has become better understood, and the relations of its various parts and their mutual dependence are more clearly recognized, dentistry has made great progress as a science, and its practitioners claim, with much justice, to be classed among the learned professions. It is, nevertheless, true, that the operations of the dentist are still for the most part mechanical, and, so far as tools are employed, they are purely so; and we could not exclude these tools from the exemption which the statute • makes, without confining the construction of the statute within limits not justified by the words employed. The ordinary meaning of “mechanical tools,” it is plain, will include those in question, and there is nothing in the context which will justify us in saying that the legislative design would exclude them.

The judgment of the court below must be affirmed, with costs.

The other Justices concurred.


author: Cooley Oh. J. Campbell J.

text:
    The People ex rel. John G. Parkhurst v. Benjamin D. Pritchard, Commissioner of State Land Office.

      Public lands: Power of Land Commissioner to withhold from sale: Costs. Where lands subject to entry are applied for, and payment tendered, the Commissioner of the State Land Office has no discretionary power to retain them from market for the accommodation of parties who had made application previously, but who were not ready to pay the money.
    The Commissioner having acted in good faith, no costs were allowed.

      Heard and decided October 13th.

    Motion for a mandamus.

    The petition.set forth the following facts:
    Parkhnrst, through one Shwimrn as his agent, on the first day of June, 1868, applied at the State Land Office to the Deputy Commissioner to purchase certain State swamp lands which he particularly described, and which, under the law, were subject to private entry or sale to any person applying at $1.25 per acre. At the time of so applying, Shwimrn had the money with him to make payment, and requested that certificates of purchase be' issued to Parkhurst. The Deputy Commissioner replied that said land had been applied for by one Richard R. Thomas by telegram on the 29th day of May preceding, and that on the next day said Thomas came to the office, but did not have the money to pay'for the land, and the'Commissioner of the State Land Office then promised said Thomas not to sell the land to any other person until after Thursday, the fourth day of June, 1868, which time he would give him to obtain the money in, and if he obtained the money by that time, he, the Commissioner, would issue certificates of purchase to him for the land.
    On the next day, June 2d, Shwimrn again applied for certificates of purchase of the land and tendered payment therefor, but the application was again denied on the same ground.
    The answer of respondent alleged that as said Thomas resided in Bay City, he agreed to reserve said land long enough to enable him to go home and send the amount required to pay for the same by mail; that the granting of time to parties so applying to remit money or an equivalent of swamp land scrip and credits to pay for them, by return mail, had been usual and customary in his department. It further showed that on the 4th day of June, at 2o’clock p. m. the Deputy Commissioner in said office received a telegraph from one Robinson to charge the lands so held for said Thomas to his (Robinson’s) account; that said Robinson then had a deposit of swamp land warrants and credits on the books of respondent for an amount exceeding that required to -pay for said land; and that he was entitled to transfer the same for the payment thereof; that said Thomas came to Lansing on the evening of June 4, and made payment for the land.
    Parkhurst thereupon applied to this court for a mandamus to compel the Commissioner to issue certificates of purchase to him as first entitled in pursuance of his application and tender.

      Gould & Lyon, for relator.

      D. G. Holbrook, for respondent.
   Cooley Oh. J.

Where lands which are subject to entry are thus applied for and payment therefor tendered, the Commissioner has no discretionary power to retain them from market in order to accommodate other parties. In the present case the right of Parkhurst to the certificates is clear.

Mandamus granted, but without costs; the court being satisfied the Commissioner had acted in good faith.

Christiancy and G-raves JJ. concurred.

Campbell J.

I am not prepared to decide that a party can not rest, upon the assurance of the head of a department acting in his official capacity, or that he is precluded from allowing some delay where parties in good faith have applied to purchase lands and desire to pay for them.

The experience which Ave have had of the manner in which interlopers have managed to slip in, and avail themselves of the information derived from applicants for land whom they have contrived to supplant, is not such as to commend any such rigid practice as would tend to favor speculators at the expense of honest applicants. The present case does not show any malpractice of that sort, but I feel very strongly impressed Avith the propriety of recognizing some degree of discretion in the head of the land office to prevent unnecessary hardships and surprises.


text:
    The People ex rel. Wm. R. Phillips v. Benjamin D. Pritchard, Commissioner of State Land Office.

      A. Bussell, and Gould & Lyon, for relator.

      D. G. HollrooTc, for respondent.
   Motion for a mandamus.

The facts in this case were the same as in the preceding, and a mandamus was ordered on the same grounds.


author: Ohristiancy J.

text:
    Theodore Romeyn v. James Caplis.

      Heard October 13th.

      Decided October 14th.

    Appeal in Chancery from Wayne Circuit.
    The bill in this cause was filed by complainant to obtain the benefit of a certain bid made for his benefit by defendant at a receiver’s sale; defendant afterwards claiming it for himself.
    The case was heard upon pleadings and proofs and a decree made in favor of complainant.

      D. O. HollrooTc, for appellant.

      ■T. Romeyn, and G. V. N. Lothrop, for appellee.
   Ohristiancy J.

No question of law arises.in this case. Upon the facts, the court are of opinion that the decree of the court below was correct, and it must be affirmed, with costs.

The other Justices concurred.