rec'd; contents duly noted. In reply will say that after consulting Mr. Butler I came to the following conclusion: If you will give me R. A. Seymour's notes, indorsed by yourself, running with interest 7 per cent. P. An. from August 19th, (the date you bought the timber from Chappell and Smith,) maturing January 15, next, for $2,333, and maturing on or before June 1st, next, $7,000, I shall execute bill of sale in accordance with my contract with Chappell and Smith at once to you without further security; and, as Mr. Butler consented, as I said, will put his deed to me for the land upon the county of Lake record at once. Please remit these notes to Mr. Butler direct, and I will attend to the bal ment with Seymour, in which it was re- | cited that Ortman did, on the 7th of December, 1886, sell to Chappell and Smith all the pine and ash timber on the lands described in that contract, and that the note of $9,333, maturing June 7, 1888, given by them, was unpaid, and reciting that Chappell and Smith had sold to Seymour said pine and ash timber, and he had assumed the payment of the note, with interest; and therefore agreeing to accept payment from Seymour of the note and interest, in a note made by Seymour payable to the order of M. Engelmann, and indorsed by him to Ortman, payable on or before June 7, 1888, and the interest from December 7, 1887, to that date. On the delivery of the new note of Seymour, and payment of in-ance, if satisfactory to yourself and agree terest, Ortman was to cancel and give up the Chappell and Smith note; and it was further recited that Butler held the Chappell and Smith note, as well as the title to the land, as collateral security, and had agreed to reconvey the land upon payment of $7,000, and to accept the Seymour note, indorsed by Engelmann, in the place of the Chappell and Smith note, which was to be delivered up and canceled; and it was therefore agreed that the Chappell and Smith contract should stand, and be in full force and effect in all its provisions and covenants, until the aforesaid note of said Seymour and Engelmann, with interest thereon, should be fully paid and satisfied, and the agreement was made a part of the contract. This contract was, on the 14th day of September, 1887, assigned by Seymour to Engelmann. On September 22d a formal assignment of the contract of December 6, 1886, was made by Chappell and Smith, and others who had become interested with them, to Seymour; and on September 24, 1887, Seymour assigned his interest in the contract to Engelmann. It is proper now to call attention to certain correspondence appearing in the record. The first letter is dated September 10, 1887, and is written from Detroit by Mr. Ortman to Mr. Seymour at Manistee. This letter refers to the exchange of the Seymour-Engelmann note for the Chappell and Smith note, then in the hands of Mr. Butler. The next letter bears the same date, and is written by Ortman at Detroit to Engelmann at Manistee. In this he says that he forwarded to R. A. Seymour the contract for timber purchased by him from Chappell and Smith, refers to Seymour's doubts relative to the title, and explains the situation of the title fully to Mr. Engelmann. On September 13, 1887, Mr. Engelmann writes to Mr. Ortman, acknowledging the receipt of his favor of the 10th, and informs him that he has bought the timber of Mr. Seymour, and that he looks to him for the title. He then proceeds: "But I will say, according to your letter, it seems you only owe $7,000 to Mr. Butler, and, if you wish, I will do this.-namely, I will arrange with you for the $2,333, if Mr. Butler is satisfied, and pay the balance on or before June 1st, providing I can cut the timber. If this helps you, let me know, and will do what I can for you." On September 14, 1887, Mr. Ortman replies as follows: "Hon. M Englemann, Manistee, Mich.Dear Sir: Your kind favor of the 13th inst. able to Mr. Seymour. Thanking you for your prompt reply, I remain, Yours, very truly, CHAS. L. ÖRTMAN." Upon the margin below appears the following: "Detroit, Sept. 14, 1887. I am willing to accept the within described notes in place of the security I now hold. E. H. BUTLER." On October 1st, 1887, Mr. Ortman wrote to Mr. Engelmann as follows: "Detroit, Mich., Oct. 1, 1887. M. Engelmann, Esq., Manistee, Mich.-Dear Sir: Your favor of 27th ult. came duly to hand. In accordance with your request, I inclose you herewith bill of sale of the pine and ash timber, on lands in T. 20 N., R. 11 W.; also my agreement to extend the period of cutting and removing the said timber therefrom to Jan. 1st, 1891. Plense to notify me by mail of your acceptance of the bill of sale and the agreement for cutting timber, with conditions and provisions therein mentioned; also, if these papers are satisfactory, please forward to me the assigned contract which you hold from Chappell and Smith. I have this day forwarded for record deed from E. E. Butler and wife to me for the lands in T. 20 N., R. 11 W. Your notes dated Aug. 19th, 1887,one for $2,333, due Jan. 15th, 1888, and one for $7,000, due June 1st, 1888,-were received by Mr. Butler all right. Very respectfully yours, CHAS. L. ORTMAN." And Mr. Butler also wrote to Mr. Engelmann on October 1, 1887, saying: "I have quitclaimed the land to Mr. Ortman. He forwards the deed for record. Also sends you bill of sale of the timber and agreement to extend time for cutting. I inclose herewith the note of R. A. Seymour, $9,333, indorsed by you. Resp. E. H. BUTLER." The inclosures referred to in the letter of Mr. Ortman to Mr. Engelmann were as follows: "Know all men by these presents, that I, Chas. L. Ortman, of the city of Detroit, in the county of Wayne and state of Michigan, of the first part, for and in consideration of the sum of fourteen thousand ($14,000) dollars, lawful money of the United States, to me paid by M. Engelmann, of Manistee, Manistee county, Michigan, of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his executors, administrators, or assigns, all the pine and ash timber grow. ing, standing, and lying upon those certain pieces or parcels of land situate in the county of Lake and state of Michigan, and described as follows, to-wit: In township twenty (20) north, of range eleven (11) west, the east half of north-east quarter, (E% of N. E. 4,) the north-west quarter of north-east quarter, (N. W. 4 of N. E. 4,) the north-east quarter of north-west quarter, (N. E. 4 of N. W. 4,) the south-east quarter of south-west quarter, (S. E. 4 of S. W.,) and the south-west quarter of southeast quarter, (S. W. 4 of S. E. 4,) and the east half of south-east quarter,) E. % of S. E.,) of section sixteen, (16,) and the southwest quarter of north-east quarter (S. W. 4 of N .E. 4,) of section twenty-eight (28.) This instrument is given in fulfillment of a certain contract, made and executed by the aforesaid Chas. L. Ortman, of date December 7th, 1886, agreeing to convey the aforesaid timber to Eugene Chappell, of East Saginaw, Mich., and D. J. Smith, of Saginaw City, Mich., which said contract has been duly assigned by said Chappell & Smith to one R. A. Seymour, and by said Seymour to the aforesaid M. Engelmann, to have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, forever. And And the said party of the first part, for himself, his heirs, executors, and administrators, does covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, to warrant and defend the sale of said property, goods, and chattels hereby made, unto the said party of the second part, his executors, administrators, and assigns, against all and every person or persons whatsoever, except as to the conditions and provisions of the aforesaid contract. In witness whereof, I have hereunto set my hand and seal this thirtieth day of September, one thousand eight hundred and eighty-seven. CHAS. L. ORTMAN. [L. S.] Signed, sealed, and delivered in presence of ROSWELL HARRIS, ALFRED M. LOUD." "Detroit, Mich., Sept. 30th, 1887. I do hereby agree with M. Engelmann, of Manistee, Mich., as follows, to-wit: That, whereas, I did, on the 7th day of December, A. D. 1886, make an agreement with Eugene Chappell, of East Saginaw, Mich., and D. J. Smith, of Saginaw City, Mich., to sell to them all the pine and ash timber from certain lands in T. 20 N., R. 11 W., which said contract was assigned by said Chappell and Smith to one R. A. Seymour, and by said Seymour to the aforesaid M. Engelmann; and, whereas, the time for cutting and removing said timber was limited in said contract to three years from January 1st, 1887, that is to say, to January 1st, 1890; and, whereas, said Engelmann has requested that the period for cutting and removing said timber be extended for one year longer, to-wit, to January 1st, 1891: Now, therefore, if said Engelmann shall well and truly pay, in due season, all the taxes levied or assessed upon the lands mentioned in said contract with said Chappell and Smith, for the additional year hereby granted, that is to say, for the year 1890, and in consideration of such payment of taxes, and not otherwise, I do hereby agree to extend to said EngelV.45N.w.no.1-5 mann the period for cutting and removing said timber for one year longer; that is to say, to the first day of January, A. D. 1891. CHAS. L. ORtman. 99 In making out the above bill of sale Mr. Ortman used an ordinary blank form, but the sentence appearing in italics was interlined with ink. I mention this because it was regarded as important by petitioner's counsel upon the argument. The oral testimony introduced to vary or explain the written evidence, or to show the intention of the parties, is excluded from our consideration as being incompetent. We think there is enough upon the face of the papers, taken in connection with the correspondence, to dispose of the question without resort to oral testimony. He At the time the bill of sale was executed, Engelmann owned all of the interest in the pine and ash timber which Ortman had conveyed by his contract to Chappell and Smith, and Ortman had been informed that he was such owner. He held Seymour's note, indorsed by Engelmann, for $9,333, payable on or before June 7, 1888, which he had placed with Butler as collateral security. There was nothing in the contract which prevented Engelmann from cutting timber, but, if he did cut, the title to the severed timber would remain in Ortman, and he would only be adding value to Ortman's property by so doing, without any right to dispose of the same unless Ortman consented to the sale. The contract effectually hampered any operations looking towards the conversion of the timber into money. It prevented the sale of the timber by Engelmann. could make full payment at any time, and thus become invested with the legal title; but nothing short of full payment would do so. Ortman had written Engelmann, explaining his situation, and of the title; that he had owed the bank $15,000, and had placed the title of the land and the note for $9,333, which he had received from Chappell and Smith, and later the substituted note of Seymour, indorsed by Engelmann, in Butler's hand as security that he had reduced the indebtedness to $7,000. Upon this information Engelmann offered to pay him the balance on the $7,000, namely, $2,333, and pay the balance on or before June 1, 1888, "providing he could cut the timber." The meaning of this expression," providing I can cut the timber, "was perfectly clear to Mr. Ortman. Both parties knew it did not refer to what Engelman had a right to do then under the contract. Mr. Ortman understood that Engelmann referred to a transfer of the title, so as to make the cutting of the timber of value to him. Consequently, on receipt of this proposition, he wrote the letter of September 14, 1887, in which he makes the proposition that if Engelmann will give him the notes specified he will execute a bill of sale in accordance with his contract with Chappell and Smith at once to Engelmann, without further security, and Butler would reconvey the land to him. object of all this was to convey the title of the timber to Engelmann. To carry out this purpose, Butler reconveyed the land, by deed dated the 30th of September, 1887, to Ortman, and he on the same day, The by bill of sale, conveyed the title of the timber to Engelmann. If the bill of sale was not executed to convey the absolute title to the timber to Engelmann, it was without point or purpose,—a mere idle ceremony. It is claimed by petitioner's counsel that the words in italics in the bill of sale, namely, "except as to the conditions and provisions of the aforesaid contract, make the bill of sale subject to all of the provisions of the contract, including that which says the title to the timber shall not pass to the purchasers until full payment. I do not agree with him. The exception, whatever it may mean, is in the warranty clause, and not in the granting clause, of the contract. The bill of sale is absolute in terms, and acknowledges the receipt of the full contract price as a consideration. It further states that it is given in fulfillment of the contract of December 7, 1886, agreeing to convey the aforesaid timber to Chappell and Smith; and in it Ortman agrees to warrant and defend the sale of the property thereby to Engelmann against all persons whatsoever. If it was the intention, by the exception which then follows, to retain in Ortman the title to the timber which, by the same instrument, he conveyed, the exception would be repugnant to the grant, and void. It can not be construed to have the effect to nullify the sale of the timber, and of the vesting of the title in Engelmann. When the bill of sale was executed and delivered to Engelmann, the only provisfons of the contract remaining in force were those providing that the timber not taken off within the time limited should revert and belong to Ortman, which time was extended to 1891, and the fifth and sixth clauses, not necessary to mention here. The bill of sale was not obtained by fraud, and it is a valid instrument. By ft Ortman voluntarily parted with his title to the timber, and had no lien or claim either upon the timber or upon the proceeds or avails thereof. The decree appealed from is affirmed, with costs. The other justices concurred. (80 Mich. 163) LEONARD V. BEAUDRY et al. (Supreme Court of Michigan. April 11, 1890.) CONTRACT-Loss or PROFITS-DAMAGES. In an action for loss of profits through defendants' breach of contract to furnish a stated quantity of logs to be sawed at plaintiff's mill, for which plaintiff was to receive three dollars per thousand feet for merchantable lumber, and two dollars per thousand feet for culls, evidence as to the percentage of logs that would run to culls, as to the number of days it would have taken plain tiff to saw the logs, and as to the daily expense of the mill, furnishes sufficient da'a to estimate plaintiff's damage without resorting to speculation or conjecture. Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge. Action for breach of contract by Mary G. Leonard against Charles Beaudry, Joseph B. Champagne, and Katherina Hertz. There was a judgment in plaintiff's favor, whereupon defendants took this writ. For the facts, see 36 N. W. Rep. 88. Bunker & Carpenter, for appellants. Smith, Nims, Hoyt & Erwin, for appellee. CHAMPLIN, C. J. The law of this case was settled in 68 Mich. 312, 36 N. W. Rep. 88. The testimony as to whether or not a contract was entered into beween the parties, such as declared on in the declaration, was conflicting and directly antagonistic. This testimony was submitted to the jury under proper instructions, and they have found in favor of the plaintiff. Their action does not come before us for review, if there was any testimony to support their verdict. The record discloses that there was such testimony. We have examined the errors assigned upon the rulings of the court in the admission of testimony, and find such rulings are free from error. The only error assigned which requires comment is that which is based upon the right to recover damages under the testimony in the case. When the case was here before, we said: "When a claim is made for damages arising from breach of contract, and evidence is offered to show loss of profits which might have been realized from a performance of the contract, the question to be determined is whether the damages claimed are too conjectural, speculative, or contingent to form a safe basis for estimating the damages;" and we there said that, in a case like this," there is no reason why the difference between the cost of performance and compensation agreed upon should not be recovered as actual damages suffered by the aggrieved party." Defendants' counsel claims that the testimony is insufficient to form any just basis for the jury to estimate the plaintiff's damages. The jury having found for the plaintiff, they must have found that a contract was entered into as claimed by the plaintiff. Briefly stated, it was an agreement that the defendants would furnish to the plaintiff, to be sawed upon a band-saw at her mill, 1,000,000 feet of pine saw-logs of large size, and to commence the delivery of such logs at the mill as soon as the plaintiff was ready to saw them, which was about the 10th or 15th of May, and all to be delivered in the last part of June or the first part of July; for which sawing the defendants agreed to pay the plaintiff $3 a thousand feet for merchantable and short lumber, and $2 a thousand feet for culls. The testimony showed that about 10 per cent. of such logs would run to culls. Had she been furnished the logs so that she could have performed her contract, she would have been entitled to receive for sawing 100,000 feet of culls, at $2 per thousand, $200; and for sawing 900,000 feet of merchantable and short lumber at $3 per thousand, $2,700,total, $2,900. There was testimony as to the capacity of the mill forsa wing lumber, varying from twenty to forty thousand feet per day, depending upon the size of the logs; but the most of the witnesses placed the capacity from twenty-five to thirty thousand feet. There was testimony tending to show that it would have taken from four to six weeks to saw the million feet contracted for. We have no way of ascertaining what number of days the jury agreed upon as the time it would have taken to do the sawing; but the testimony furnished them data from which they could fix the number of days with reasonable certainty. The testimony also tended to show that the daily expenses of operating the mill in performing the work contracted for was $65. We think there was testimony upon which the jury could safely and justly estimate the damage without entering the field of speculation and conjecture. When they fixed from the testimony the daily capacity of the mill, or the number of days required to perform the work, they could readily ascertain the difference between the cost of performance and the contract price therefor. There is no error of law in the record, and the judgment must be affirmed. MORSE and GRANT, JJ., concurred. LONG, J., did not sit. (80 Mich. 139) CONLIN V. MASECAR. (Supreme Court of Michigan. April 11, 1890.) REFORMATION OF DEED-MISTAKE-EVIDENCE. 1. In an action by the vendor to reform a deed for mistake, the fact that it is made out in the name of the purchaser's wife will not render incompetent parol evidence of the nature and extent of his examination of the premises before making the bargain, though he was not authorized, in writing, to act for her. 2. The vendor, misled by descriptions in conveyances from which he derived title, represented the premises to the purchaser, when he examined them, as two full lots, and the deed so described them, when in fact they consisted of one and a half lots only, under one fence. Held, a mutual mistake, entitling the vendor to a reformation of the deed, notwithstanding his failure to search the records and discover his error. Appeal from circuit court, Monroe county, in chancery; E. D. KINNE, Judge. Action by John B. Conlin against Appalonie Masecar for the reformation of a deed. There was a decree in complainant's favor, and defendant appeals. I. G. Humphrey, for appellant. G. M. Landon, for appellee. half of 23, Studiford plat, giving the bound- Mr. Conlin lived at White Pigeon, in St. Joseph county, and transacted his business at Monroe through his agent and attorney in fact, Edward R. Gilday. Neither Conlin nor Gilday had actual notice of the situation of the title, at this time, save what appeared from the description contained in the two mortgages executed on the 9th day of July, 1873, which Conlin had purchased. They had long known the CHAMPLIN, C. J. Complainant filed his bill in the circuit court for the county of Monroe, in chancery, to correct a mistake in, and reform, a deed executed by him to defendant, dated May 23, 1879, conveying to her "all that certain piece of land situate in the city of Monroe, county of Mon-premises occupied by the Stringleman roe, and state of Michigan, known and described as 'Lots Number Twenty-Three and Twenty-four (23 and 24) of the Studiford Plat,' according to the recorded plat thereof, with the buildings thereon." The deeds contained covenants of seisin and against incumbrances, and a warranty to defend against all lawful claims. The bill also prayed a perpetual injunction restraining defendant from further prosecuting a suit at law which she had brought against him for breach of covenants in the deed, which was commenced on the 6th day of February, 1887; and the bill in this case was filed April 4, 1887. The alleged mistake is in the description of the premises, and consists in conveying the whole of lot 23, when it should have only conveyed the west half of lot 23, and the whole of lot 24. By the Studiford plat, lots 23 and 24 have each a frontage of 50 feet. In 1849, William P. Gale conveyed, by warranty deed, to Richard Stringleman, lot 24, and the west family, embraced within the inclosure. In the winter or spring of 1879, Mr. Gilday proposed to sell the premises to Dr. A. J. Masecar. Dr. Masecar had resided in Monroe but a short time, and had formed an intimate acquaintance with Mr. Gilday; and they, as well as their families, were on the most friendly terms. At the suggestion of Mr. Gilday, they went to view the premises. The doctor examined the premises,-went through the lower part of the house, and into the front and back part of the lot. Mr. Gilday told him the premises consisted of two lots. There is a serious conflict of testimony as to scie things which are claimed by Mr. Gilday to have occurred upon that examination. Mr. Gilday testifies that the question arose as to the width of the premises, and that he judging of the distance between the fences, said to the doctor that the lots could not be over 40-foot lots, as he did not think it was over 80 feet between the fences; that the doctor thereupon went to the fence at the south-east corner, and paced across the front of the lot; and that he asked the doctor how much he made it, and he shook his head, and said, "I don't think it is quite that much;" that he said to the doctor: "I don't know whether it is that or not. I don't know the width of the lots here. They are so described in the papers, and that is all I know." This part of Gilday's testimony is positively and distinctly denied by the doctor. I do not consider this disputed testimony of much importance. The doctor was then 40 years of age. He had had large experience in building houses, -could tell the dimensions of the house upon these premises; and it would seem, if that question was material to his purchase, that a man with such experience, and with such ability to give dimensions, would readily discern the difference between the frontage of 75 and of 100 feet. The price asked was $1,000. After viewing the premises, the doctor offered $900, which, after a time, was accepted. Mr. Gilday was about to prepare a deed, when the doctor told him to make the deed out in his wife's name, and gave him her name to insert in the deed. After it was drawn, it was sent to White Pigeon for execution, and on its return Mrs. Masecar executed her note and mortgage for a balance of the purchase money; the description in the mortgage following that of the deed, and describing the premises as lots 23 and 24. Mrs. Masecar and the doctor went into possession of the premises, and on November 15, 1883, executed a mortgage upon them to Mary Leonard, describing them as "Lots 23 and 24." It appears that the two mortgages which Conlin had purchased, given by Mrs. Stringleman, had not been discharged of record; Mr. Gilday considering that they had merged in the deed from Mrs. Stringleman to Conlin. Dr. Masecar testifies that he found, upon investigation, that the mortgages had not been discharged, and also that somebody had a deed to the east half of lot 23; that he then went to Mr. Gilday, and requested him to discharge those mortgages, and after some conversation he promised to discharge them; that he asked him at that time how it was that he had sold Mrs. Masecar two lots, when half of one of those lots was deeded to somebody else, and that he "asked if he knew that lot was sold. He said he did. He said he sold Mrs. Masecar just exactly what Mr. Conlin's interest was in that property." Mr. Gilday denies that part of this conversation relating to the title of the east half of lot 23. It appears by the record that Mr. Gilday discharged the two mortgages mentioned on the 6th day of November, 1883. At this time, according to Dr. Masecar's testimony, he knew that Mrs. Masecar had no title to the east half of lot 23; and yet it appears by the record that on the 15th day of November, or nine days later, she mortgaged both of the lots, regardless of want of title to the east half of 23, to Mary Leonard. The only importance this testimony has is its bearing upon complainant's delay to bring sult. Both Mr. Conlin and Mr. Gilday testify that they were not aware of the mistake until after the com mencement of the suit at law. Mr. Humphrey testifies that he wrote a letter to Mr. Conlin notifying him of his want of title to the east half of lot 23. The testimony as to mailing the letter was not defi nite, but depended upon the ordinary usage and custom of mailing letters written by his firm. Mr. Conlin testifies he never received it. It is not necessary to recite the testimony at large. Counsel for defendant claims that the parol testimony showing what Dr. Masecar said and did was incompetent, for the reason that he was not authorized in writing to act for his wife; that the deed is the only written evidence of the sale and purchase, and that cannot be reformed, unless in accordance with some preceding agreement in writing. I think, under the circumstances of this case, the testimony as to what preceded the writing of the deed was admissible. The doctor represented himself up to the time the deed was drawn, and then he directed his wife's name to be inserted. She stepped into his shoes at that point, and is in no better position. than he would be in had the deed run to him. In order to determine whether a mistake has been made in describing the property sold, it is essential to ascertain the intent of the parties-the one in selling, and the other in buying-as to the subject-matter of the sale. If the deed expresses that intent, then there is no mistake which can be relieved from in equity. The premises which the complainant, through his agent, Gilday, offered for sale, was a parcel of land inclosed by fences. The seller and the purchaser were upon the ground, and the purchaser saw all there was offered for sale. It was described to him as two lots. It would be idle, as well as preposterous, to claim that as the parties stood there, upon the ground, looking at the inclosure, the one intended to sell, or the other to buy, or thought he was buying, a strip 25 feet in width beyond the east fence, then in the occupation of Mr. Kronach. It appears plainly to me that not only was there a mistake in the description of the property in the deed, but that the mistake was mutual. The defendant has got the identical premises she bought, and all she bargained for. The public records were constructive notice alike to both parties, that the legal title of the east half of lot 23 was in Kronach. The mistake contained in the description of the mortgages executed by Mr. Stringleman in 1873 led Mr. Gilday to believe that the premises were correctly described as "Lots 23 and 24. This was such a mistake as entitles a party to relief in equity. I do not think that the fact that he did not search the record back, when he would have discovered the error, was such negligence as precludes relief, under the circumstances shown in the testimony. The objection that parol testimony was not admissible to show the mistake is not well taken. The principles governing the introduction of parol evidence to reform written instruments are so well and fully stated in Pom. Eq. Jur. §§ 857-859, 864-867, that we need not incumber this opinion by stating them here. We think the decree of |