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point is the dividing line between the townships of Ecorse and Springwells, it seems, both from the petition and answer of respondents, was built jointly by these townships in 1867, and maintained and operated until 1886, when they undertook to abandon the care and control of the bridge, and to turn the same over to the county. The county refused to accept it. Whether or not this bridge was built, maintained, and operated by these townships recognizing that it was their duty to do so, I am clearly of the opinion that until this highway is legally vacated or discontinued this bridge ought to be and must be maintained by these townships. It is claimed by relator that the county is liable for the maintenance of this bridge, because it built the same in 1833, and again in 1848 or 1849, under authority from the legislature, as before stated; that by these acts the legislature intended to place the burden of building and maintaining the draw-bridge upon the county, and that the county accepted such burden by taking the appropriation, and building the bridge in both instances. We do not think that the legislature intended to take the bridge out of the operation of the general laws of this state by the act of 1848. This act simply authorized the board of auditors to repair and rebuild two draw-bridges, of which this was one; and appropriated 1,600 acres of internal improvement lands for that purpose. It placed no command or burden upon the county as to its maintenance, nor is there anything to be found in the act incompatible with the idea that the care and control of the bridge and the duty of maintaining, repairing, and operating the same should devolve upon the townships within whose limits it might be situated. There is nowhere in the recor.) any proof that from the time the bridge was built by Slocum in 1849 up to the present time the county of Wayne has had any care or control of this bridge or expended a dollar upon it. Nor is there any proof that the county has paid anything towards the maintenance or operation of the bridge since 1837, save the $700 it paid to Slocum, over and above the state land appropriation for building this bridge and another in the township of Greenfield upon a contract let under the act of 1818. The probabilities seem to be that the townships have kept up this bridge, at least from 1849 to 1886. We do not intend to conclude the townships of Spring wells and Ecorse by our action in a case where they are not parties, but from the showing before us upon the facts, and under the law as we view it, the maintenance and operation of this bridge belong to them. At any rate, we find no liability fixed upon the county as the record appears. The writ must be denied, with costs. The other justices concurred.

MALTBY et al. v. PLUMMER.

(Supreme Court of Michigan. October 19, 1888.) 1. CONTRACTS_PERFORMANCE.

Under a contract, whereby plaintiffs' assignors agree to deliver for defendant such of his logs as he might deem fit for a certain market, it is defendant's duty to designate such logs; and if, under general instructions, he leaves the question to the judgment of the other parties or their agents, he cannot complain of the fair ex

ercise of their judgment. 2. SAME-CONSTRUCTION-LOGGING CONTRACT.

A clause in such a contract bound plaintiffs' assignors to place logs "upon the skids at the mill, keeping those of particular lengths by themselves." There were 13 different lengths cut and but 2 skid-ways provided. The lumber was generally sawed in two classes, usual and customary lengths, and particular lengths for special bills. Held, that the clause only provided for the separation of logs intended for these two classes of sawing, and not that only logs of precisely the same lengths

should be placed together. 3. SAME-DAMAGES FOR BREACH-PLEADING.

A counter-claim for damages for failure of plaintiffs' assignor to perform a stipula tion in such contract, to supply the mill with a sufficient quantity of logs to keep it employed, does not show damages by simply alleging generally the loss of such spe. cial bills for unusual lengths, but should show the particular orders lost by the lack of lumber to fill them.

4. SAME-TRIAL INSTRUCTIONS-COMMENTS OF JUDGE.

Defendant testified that under the orders of plaintiffs' assignor he paid an employe of the latter for some work, which the employer denied. The employe testified that his employer paid him for different work, and that for the work in question he had been only once paid. The court in its charge said that it was immaterial what the jury might think of the employe for receiving pay twice for the same work, and that, assuming that the witnesses were equally honest, it indicated a misapprehension of the parties. Held, error prejudicial to the defendant, as assuming that the employe had been paid twice, and that the parties were under a misapprehension. Error to circuit court, Bay county; S. M. GREEN, Judge.

Two actions of assumpsit, by Alvin Maltby, W. Irving Brotherton, Henry N. Watrous, and Orville A. Watrous, assignees of Smith & Guilford, to recover money due on a lumbering contract. The actions were consolidated and tried by a jury. Verdict for plaintiffs for $11,080.77, and judgment thereon. Defendant brings error.

Tursney & Weadock, (T. A. E. & J.C. Weadock, of counsel,) for plaintiff in error. J. L. Stoddard, (B. Hanchett, of counsel,) for defendants in error.

LONG, J. The plaintiffs began two suits in the circuit court for the county of Bay against the defendant on the 16th day of November, 1886,-one by declaration containing the common counts only, and to which declaration was appended a copy of a promissory note given by defendants to plaintiffs on September 2, 1886, for $2,164.11, payable 30 days after date, and the other by summons, in which a declaration containing two special counts and also the common counts were afterwards filed. These two suits were tried as one case. In these special counts a copy of a contract, dated July 17, 1885, made between Smith & Guilford, plaintiffs' assignors, and the defendant is set forth. This contract provides substantially: (1) Said second parties [Smith and Guilford] agree that they will skid, haul, and deliver upon the cars of the Michigan Central Railroad Company at the Ogemaw village switch at Ogemaw village, Ogemaw county, Mich., all the merchantable white pine logs that said first party shall deem proper for the Saginaw market, situate and being upon section 21 and 28, town 22, N., range 1 E., Michigan, at and for the price of $2.50 per thousand feet. Also, that they would skid, haul, and deliver at the mill of said first party [Mr. Plummer) at Ogemaw village aforesaid, all the remainder of the white and Norway pine and hemlock standing and being upon said section, at and for the price of $2.30 per thousand feet; (2) that they will deliver said logs in sufficient quantities to keep the saw-mill of said first party constantly supplied with logs for sawing purposes at Ogemaw village, and place the same upon skids at said mill, keeping logs of particular lengths by themselves; (3).that they will deliver of said logs required by said first party for the Saginaw market not less than three million, nor more than five million, feet between the date of this contract and the 1st day of Decenaber, A. D. 1885; (4) that he will suspend operation from said 1st day of December next until the 1st day of April, 1886, or until said first party shall have time to cut and save such timber as may have been damaged by fire upon lands owned by him in the neighborhood of said above sections; (5) that he will board the men of said first party engaged in cutting said timber free of cost; (6) that they will do all such work in a good and workmanlike manner and use all due diligence in delivering and forwarding the timber intended by first party for the Saginaw market upon the recommencement of operations in the spring of 1886 and thereafter. In consideration whereof first party agrees: (1) that he will pay said second parties for skidding, hauling, and delivering logs intended for Saginaw market, $2.50 per thousand feet, etc.; (2) that he will allow said second parties the use of all the railroad cars and equipments now belonging to said railroad running to and from said lands to do such work; (3) that he will cut a suificient amount of timber from said lands per day to mutually assist said second parties in doing said work, and keep said

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mill supplied with logs, and that he will keep a sufficient space clear for the unloading of the same, and the care of such logs after unloaded, so as not to delay said second parties in delivering the same. The logs were to be scaled by a competent scaler to be agreed upon by the parties, each party to pay one half of scaler's wages. This contract was signed by defendant Plummer and by Smith & Guilford. The defendant pleaded the general issue, and gave notice of set-off, and also notice of several matters of defense. The parties subsequently entered into a stipulation covering certain matters of account and showing that the plaintiffs and their assignors had earned in skidding, hauling, and delivering logs,

$52,570 02 Due plaintiffs for camp supplies and due bills,

339 14 For certain items of interest and pro fees,

86 13 Making a total for which plaintiffs were entitled to credit of $52,995 29 The amount for which it was stipulated the defendant is entitled to credit is

$41,890 88

Thus leaving a balance, exclusive of interest, prima facie due the plaintiffs according to stipulation, of

$11,104 41 In addition to this balance and interest thereon the plaintiffs claimed in their declaration and at the trial damages for the increased expense in skidding occasioned by the manner in which the cutting was done by the defendant in skipping or moving about from place to place instead of cutting the timber substantially clean as the work progressed, which it was claimed is the usual and customary manner in which timber is cut upon lands that are being lumbered. The plaintiffs also claimed damages caused by the alleged failure of the defendant to “keep a sufficient space clear for the unloading” of the logs, and to take care of them “after unloaded, so as not to delay said second party in delivering the same.” They also claimed damages for alleged failure of defendant at certain times to cut the timber fast enough to enable them properly to do the work, but no question arises upon this branch of the case. The declaration alleges the assignment of the contract declared upon from Smith & Guilford to the plaintiffs. Defendant, in his notice of recoupment, alleged and insisted upon the trial that plaintiffs and their assignors did not perform the contract sued upon; that they failed and neglected to load 5,000,000 feet of logs for the Saginaw market before December 1, 1885; that, by reason of the default in the delivering of said logs for the Saginaw market, the expense of hauling, taking care of, and receiving them was largely increased; that they failed and neglected to deliver on the cars of the Michigan Central Railroad Company at Ogemaw village all the white pine saw logs suitable for the Saginaw market, but on the contrary delivered logs that were coarse and unsuitable for the Saginaw market, thereby increasing the expense of handling the coarse logs, including the freight, to a large amount; that, by the admixture of coarse logs with the white pine logs suitable for the Saginaw market, it depreciated the value of the logs suitable for the Saginaw market to a large amount; that they failed and neglected to furnish a sufficient quantity of logs to keep defendant's mill running, and by reason thereof defendant was compelled to and did shut down his saw-mill at Ogemaw village a large number of times, and was compelled to keep a large crew of men idle, and was thereby unable to put upon the market his said lumber, and was unable to fill his orders or perform contracts entered into by him, and thereby lost great gains and profits; that they did not regard the terms of said contract whereby they agreed to keep logs of particular lengths upon skids by themselves at defendant's saw-miil, but that they piled upon skids at the mill of defendant logs of all lengths, including hard wood, hemlock, and pine, both white and Norway; that at the time of making said contract, and during its continuance the defendant was engaged in the manufacture of special bills;

that his mill is what is known as a special bill timber mill; that it was in the contemplation of the filling of such special orders that the contract declared on was entered into, and that plaintiffs and their assignors had full knowledge of these facts, and that by reason of their failure to so pile said logs he was compelled to saw his logs into lumber of miscellaneous lengths, and was unable to fill special orders and contracts, and was compelled to cancel numerous contracts and orders entered into by him; that the lumber manufactured from the logs, by reason of being so mixed and sawed into miscellaneous lengths, was rendered almost valueless; that he was deprived of great gains and profits he would have enjoyed had logs of particular lengths been piled at his said saw-mill in separate lengths froin each other; that by reason of the admixture of the logs he was compelled to and did ship a large quantity of the lumber green which brought a much smaller price by reason of having been placed on the market green, and the cost of transportation was greatly increased; that they did not remove to defendant's mill at Ogemaw a large quantity of saw logs cut clean by them as they went, but left a large amount, about 2,000,000 feet, on the skids in the woods and on the ground, which by reason of being so left subject and exposed to the weather became rotten, wormeaten, and greatly damaged; that a large quantity, some 500,000 feet of said logs, by reason of being so left in the woods, was burned by forest fires. Defendant further claimed that neither plaintiffs nor their assignors built a suitable and proper railroad track and spurs in suitable places, but attempted to construct a railroad track and spurs over which to convey said logs from said land in unsuitable, improper and impracticable places; that a portion of said railroad track and spurs was abandoned and could not be used; that other tracks and spurs were built in their stead, and that while attempting to operate said imperfect and improperly constructed railroad, large quantities of said saw logs accumulated along the line of said railroad track and spurs, and were there left and abandoned and by reason thereof became valueless to defendant; that the plaintiffs and their assignors failed to properly use and manage a certain steam locomotive belonging to defendant, and included in the terms of the contract declared upon; that said locomotive was injured and damaged, and that in all, by reason of the neglect and failure of the plaintiffs and their assignors, defendant was damaged to the amount of $50,000. The jury returned a verdict in favor of the plaintiffs for the sum of $11,080.77, and defendant brings error. The record contains substantially all the evidence in the case.

The case was fully submitted by the court to the jury upon the respective claims of the parties for damages growing out of this contract under the special counts of the declaration. It is now claimed by defendant's counsel that the stipulated amount, aside from these respective claims for damages, being $11,104.41, is so near to the amount of the verdict rendered by the jury.of $11,080.77, that it is evidence that the jury did not allow damages to the plaintiffs under their declaration, nor did they allow any damages by way of recoupment to the defendant in finding the amount of their verdict. One hundred and fifteen errors are assigned. The case was very fully tried, and a large number of witnesses examined, and a large amount of testimony taken. The charge of the court is very full and explicit upon the claims of the respective parties. Some 30 of the assignments of error relate to the refusal of the court to permit certain questions put either upon the direct examination of defendant's own witnesses or upon the cross-examination of plaintiffs' witnesses to be answered, and some 49 of the assignments of error relate to the admission of evidence offered by plaintiffs under objection of defendant's counsel. The other assignments of error relate to the refusal of the court to charge as requested by defendant's counsel and to the charge as given. At the close of the testimony the defendant requested the court to charge the jury: "First. By the terms of the contract between Smith & Guilford and the defendant dated July 17,

*

1885, Smith & Guilford were bound to deliver upon the cars of the Michigan Central Railroad at Ogemaw village switch all the merchantable white pine on sections twenty-one and twenty-eight, town twenty-two north, range one east, that defendant should deem proper for the Saginaw market. If, from the evidence, you find that Smith & Guilford or plaintiffs delivered, among the white pine logs that defendant deemed proper for the Saginaw market, against the protest of the defendant, coarse and cull logs that defendant did not deem proper for the Saginaw market, the defendant is entitled to recover such damages as he sustained by reason of such default.” Error is assigned upon the refusal of the court to give this request in charge to the jury specifically. The court, in its general charge to the jury, fully covered this question, and, as we think, very fairly. Among other things in relation to this part of the case, the court stated to the jury: “Under this contract both parties had a duty to perform. Mr. Plummer would have no right to come in here and say: 'I deem certain logs proper for the Saginaw market and certain other logs not proper for that market, but these plaintiffs delivered logs that I deem not suitable for that market,' and claim damages unless he shows that he had indicated to them in some proper manner what logs he did deem suitable for that market. *

If these men, in violation of their contract and their good judgment, and the judgment which they ought to have applied to the distinction which he pointed out to them as their guide, if they disregarded it, and sent logs to Saginaw that they had reason to suppose Mr. Plummer did not deem proper for that market, then they are liable for the consequences and the damages that resulted to him from securing that kind of logs there.

But if he left it to the judgment of these men, and these men exercised that judgment fairly and honestly, he must be bound by that judgment. But if they frequently disregarded his directions, and did put timber upon the cars and send it to Saginaw that they knew was not suitable for that market, and knew that he deemed unsuitable, then they ought to pay damages.” It is clear by the contract that defendant was required to designate the logs which were to go to Saginaw. He should do it in such manner as it would be profitable for plaintiffs to work by. If he left it to plaintiffs' judgment, or to the judgment of the scaler or foreman, and gave only a general description, so that it involved judgment, and that judgment was fairly exercised, he could not complain, and we think this part of the charge fully covered all that defendant had any right to ask. Defendant further requested the court to charge: “If you find from the evidence that plaintiffs' assignors did not keep defendant's mill at Ogemaw village constantly supplied with pine logs for sawing purposes, the defendant is entitled to all damages sustained by him by reason of such failure." This the court also refused to give. The claim made by the notice under his plea does not set forth any particular bills lost. His claim is that he might have obtained orders for special bills. He does not name a single bill which he thus failed to get. The claim is presented in no other than the most speculative way, and does not present a fact to be tried as to damages. The court instructed the jury upon this question, and we find no error in those instructions. The case in principle falls directly within the ruling of this court in Allis v. McLean, 48 Mich. 428, 12 N. W. Rep. 640. Defendant further requested the court to charge the jury: “Keeping logs of particular lengths by themselves in the contract of July 17, 1885, means that logs of different lengths should be placed on skid-ways at defendant's mill, each length separate from every other length. As an illustration, all logs twelve feet in length together, all logs fourteen feet in length together, and so on throughout the various lengths of logs under the contract. If they were not delivered, so that logs of particular lengths were kept by themselves, the defendant is entitled to recover damages by reason of this breach of the contract.” The contention of the defendant is that the random logs, that is logs of different lengths, though

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