102 Mich. 618 | Mich. | 1894
Plaintiffs recovered a verdict and judgment for $2,329.04, principal and interest, as commission on the-sale of a lot of logs purchased by defendant from McConnell & Tough, of Canada. Plaintiff McKinnon resides in Cheboygan, in this State, has been a lumberman for 18-years, and for the last 6 years'has been principally engaged in dealing in logs and lumber on commission. Burrell is a-lumberman doing business mostly in Canada. The defendant is a manufacturer of lumber in Bay City, Mich. McConnell & Tough had about 9,000,000 feet of logs lying-in the Spanish river and one of its tributaries in Canada. Burrell, learning that the logs were for sale, made a partial examination, and on February 18, 1891, obtained a written option in the name of the plaintiffs for their purchase. The price was $7.50 per thousand feet. Plaintiffs were to have 30 days within which to conclude the purchase, two-thirds to be paid in cash upon the completion of the contract, and the balance when the logs were scaled at the mouth of the river. A contract had been let by McConnell & Tough to drive the logs, for which plaintiffs agreed
Plaintiffs declared upon an express contract for 3 per cent, commission with the defendant if he purchased the logs. Their evidence supported the claim. Defendant ■denied any contract whatever with the plaintiffs, and gave ■evidence to support his claim. Defendant and the Michigan Pipe Company purchased the logs, and the purchase was evidenced by a written agreement. This agreement •differed from the terms of the option in three particulars:
1. The price per thousand was $7.90, instead of $7.50.
2. McConnell & Tough agreed to drive the logs, and deliver them at the mouth of the river.
3. The contract provided that if the vendors should not be able to deliver the logs, or any portion thereof, during the spring or summer of 1891, owing to their being stuck for want of water, lost by tempest, or any other unavoidable accident, neither party should be compelled to carry out the agreement, and the vendees should .be liable to pay for only such logs as were actually delivered.
The increased price was in consequence of the delivery :at the mouth of the river, the driving being at the expense of the sellers rather than the buyers, as provided in the option. Only 675,000 feet were delivered, and the vendors and vendees settled their difference as to those undelivered, the terms of which settlement do not appear.
According to the plaintiffs’ evidence, they gave their •option to the defendant, who went to Canada and made the purchase. Defendant informed them that he had purchased, and they were not notified, and had no knowledge until after this suit was commenced, that the terms of the contract differed from those of the option. The issues •of fact were settled by the jury in favor of the plaintiffs. The errors alleged arise upon the admission of testimony .and the charge of the court.
1. The first error complained of is the admission of the
“ Have no estimate on quantity; not customary here. Less than 1,000 pieces Norway, balance white pine. Can. mail specification if desired."
The other:
“Logs good. Your Mr. Burrell has thoroughly investigated our logs. We prefer purchasers to act on their own opinions. Little over seven to the thousand."
The letter of February 19 is of no consequence, except that it is claimed by the plaintiffs that it was introduced for the purpose of fixing the dafe. It contained nothing-affecting the issue before the jury. It might with propriety have been ruled out as immaterial, but it is impossible to hold that its contents could have affected the jury to the prejudice of defendant. ' Immaterial or irrelevant, testimony must be of such a character as naturally to prejudice the jury against the party objecting to its admission; otherwise, the judgment will not be reversed for its-admission. The other papers were properly introduced as part of the res gestae. They related to the subject-matter in controversy, and contained information which might be-, of value to the proposed purchaser.
2. The court refused to permit the defendant to testify that in his conversation -with the plaintiffs he had no idea, that they intended to charge for commission. His secret, understanding was incompetent. The intent and agreement, of the parties were to be determined from their conversation and their acts. Neither party was at liberty to testify to his understanding.
3. Mr. McKinnon was permitted to testify that “ thee
4. The defendant requested the court to instruct the jury that, if he did not buy the logs under the option, he was not liable for the commission charges, and that at most plaintiffs could recover a commission only on the logs .actually purchased and delivered. These requests were refused, and the court instructed the jury that it made no ■difference whether the terms of the purchase were in accordance with the terms of the option, unless the ■defendant, because of some fault of either the plaintiffs
o. On March 19, 1891, McConnell & Tough telegraphed McKinnon, saying:
“Gates still negotiating. Extended time to Monday,— ■24 th.”
The admission of this telegram is alleged as error because ■ defendant was not shown to have had any knowledge of it, and that it could not in any manner affect him. The testimony was competent to show the extension of the •option. In view of a new trial, it may be well to remark that a different question would have been presented if the •option had expired before the purchase, without any fault -of the defendant, and he had purchased in good faith, .relying upon its expiration.
Judgment reversed, with costs, and a new trial granted.