123 Mich. 151 | Mich. | 1900
This is an action of trover for the conversion of 512 cords of wood delivered into the defendant’s custody under an agreement the substance of which was as follows:
“First. The said Ira N. Bryant, in consideration of the promises and agreements by the said Daniel B. Kenyon as hereinafter set forth, hereby sells and agrees to deliver to the said Daniel B. Kenyon twenty-four hundred cords of wood, principally hard wood, consisting of beech, maple, ironwood, elm, soft maple, white ash, a little white oak, basswood, and a little black ash, all cut from the Henry Lyons farm, in Adams township, in said county, and being the same wood looked over and examined by the said Daniel B. Kenyon within the past few days, excepting a little not yet cut, but the timber from which it is to be cut the said Kenyon has also looked over and examined. Said wood is to be what is known as block wood, not split fine, and from sixteen to eighteen inches in length. Said Bryant is to deliver said wood in Hills-dale, North Adams, or Pittsford in such proportions and in such place as the said Kenyon may direct, or the whole of it at -either place, if so directed. Fifteen hundred cords of said wood shall be delivered by said Bryant on or before May 15, 1896, and the remaining nine hundred cords on or before September 15, 1896.
“ Second. The said Daniel B. Kenyon agrees to pay to the said Ira N. Bryant one dollar and fifty cents per cord for said wood, and to be paid as follows: As fast as one hundred cords of wood shall be sold, said Kenyon shall pay said Bryant one hundred and fifty dollars in cash therefor. The wood shall be drawn and piled by Bryant suitable for measuring, and the same shall be measured as drawn by said Daniel B. Kenyon and one Ransom Baker; Baker having charge, of the drawing and measuring for Bryant. And said Kenyon shall deliver to said Baker, for Bryant, a statement in writing, showing the amount of wood received and measured. The title to said wood shall be and remain in said Bryant as the sole and only property of him, the said Ira N. Bryant, with all rights of possession, etc., until the same shall be fully paid for as above set forth.
*153 “Third. The wood shall all be sold and paid for within three years from the date hereof.
“Fourth. Said Daniel B. Kenyon, as earnest money, is forthwith to convey to said Ira N. Bryant a house and lot in the village of Alvordton, Williams county, Ohio, of the estimated value of eight hundred dollars, by good and sufficient warranty deed, excepting as against a mortgage now on same, but which the said Kenyon agrees shall not exceed in amount, at this date, including principal and interest, the sum of three hundred dollars; and upon the receipt of said deed said Ira N. Bryant shall indorse upon this contract or agreement the receipt of the sum of five hundred dollars as payment hereon.”
On the trial it appeared that there had been delivered to defendant, under this contract, about 2,113 cords of wood. And there was testimony tending to show that, after the wood was all delivered, plaintiff brought an action of assumpsit to recover the purchase price of such of the wood as had been sold prior to the commencement of that action; that such judgment remains unpaid; and that some 512 cords, which had not then been disposed of by defendant,- have since been disposed of by him. The circuit court directed a verdict for defendant on the ground that plaintiff had, by bringing his action in assumpsit, made an election, and that he could not now maintain trover. The defendant’s counsel further contend in this court that trover could not be maintained for wood sold under this contract, for the reason that the contract contemplates a sale of the wood by Kenyon; and also that the point that the plaintiff had made a binding election had been adjudicated in a chancery suit between the parties. For convenience we will treat these questions in the inverse order from that in which they are stated.
The judgment will be reversed, and a new trial ordered.