88 Mich. 354 | Mich. | 1891
This is an action of debt brought upon a replevin bond.
On April 2, 1886, Charles Nitz sued out of the circuit court for the county of Alpena a writ of replevin to recover possession of certain goods, described therein as follows:
“ One hundred and thirty thousand feet of white pine and Norway pine saw-logs, some of which are 12, some 14, some 16, and some 18 feet long, and now being in a certain stream commonly called the ‘ Narrows/ a tributary of Long lake, in said county of Alpena; being all the white pine and Norway pine saw-logs taken by said defendants hereinafter named, and claimed by them to have been cut by Charles Nitz, during the winter of 1885 and 1886, from off the S. W. ‡ of S. E. £ and the N. E. i of N. W. ¶, of section twenty-five (25), town thirty-two (32) north, of range eight (8) east, State of Michigan.”
Before such writ was served, an affidavit was made by Nitz, and subscribed to by him on the 2d day of April, 1886, which was annexed to the writ before service. The
“The affidavit for and the writ of replevin be considered amended, and the same are hereby amended, by substituting the words, the ‘north-east* instead of the words the ‘south-east/ so that the first description therein shall read as follows: ‘The south-west quarter of the north-east quarter/ etc.”
Thereafter the plaintiff filed his declaration in the suit, in which he described the property as follows:
“ One hundred and thirty thousand feet of white pine and Norway pine saw-logs, some of which are 12 feet, some 14 feet, some 16 feet, and some 18 feet long,, located at the time of replevin on a certain stream commonly called the ‘Narrows/ a tributary of Long lake,, in said county of Alpena; being all the white pine and Norway pine saw-logs taken by said defendants herein-before named, and claimed by them to have been cut by Charles Nitz, during the winter of 1885 and ‘6, from off the S. W. £ of the N. E. £, and the N. E. £ of the N. W. £, of section 25, town 32 north, of range 8 east, State of Michigan.”
Issue was framed upon that declai’ation, and the cause has been tried, and resulted in a judgment in favor of the defendants, who, instead of taking a return of the
The defendants introduced testimony tending to show that the judgment recovered was for the value of logs which were cut from the S. W. ‡ of the N. E. ¿ of section 25, mentioned in the declaration; and counsel for defendant sureties in the replevin, bond claim that, after the bond was executed and delivered, a material alteration was made in the declaration in the replevin case, by which the liabilities of the sureties were enlarged, and they made liable for the value of logs which were not included in the description of the property contained in the 'bond, and that they are therefore discharged from liability. The circuit judge permitted this testimony to be given in the first instance, but after-wards struck it out of the case as irrelevant and immaterial, and directed the jury to render a verdict for the plaintiffs for the amount of the judgment recovered in the replevin suit and the costs, which they did; and the question now is whether the amendment made to the declaration was such a material change in the contract of the sureties as operated to - discharge them from liability. If it was, the court erred in .striking out the testimony; if not, there is no error in the record.
The logs replevied are not described as containing any marks by which they could be identified. One white pine or Norway pine saw-log has much the same appearance as any other white pine or Norway pine saw-log of similar dimensions; and, where property is thus of a kind which answers to a general description, the description contained in the writ is often aided by a reference to
“The bail never agreed to indemnify plaintiff against the charges set out in the second declaration. There can be no presumption that recovery was not based on the new averments, which are not only material, but descriptive. We think it is impossible to lawfully hold them liable upon the judgment.”
In this case the testimony introduced, and afterwards stricken out, showed that the judgment recovered was for damages on account of the logs which were intro
The judgment must be reversed, and a new trial granted.