98 Mich. 193 | Mich. | 1893
Plaintiff brought assumpsit to recover the proceeds of certain logs which were taken from his premises, cut into lumber, and sold by defendants, and had judgment for $117.50.
The court instructed the jury that if plaintiff recovered less than $100 the defendants would recover costs. This was manifest error. The rule laid down in Steketee v. Kimm, 48 Mich. 322, should be applied to actions of tort only. The questions to.be determined by the jury in the present case were: (1) The cutting; (2) the quantity cut; (3) the value. The plaintiff had the choice of both remedy and forum. The costs are fixed by statute, and are dependent upon the finding of the jury and the forum. The jury should not be directed to add to or diminish either quantity or value with reference to the question of. costs, especially in a case where the plaintiff chose to waive the tort and follow the proceeds of the timber cut.
Inasmuch, therefore, as the judgment must be reversed, and a new trial had, it may not be improper to determine the law of the case presented by the record. A written contract was claimed to have been entered into between the parties, under which defendants insist that they were' entitled to all of the timber, cut into logs, that was upon the premises. Plaintiff cut from the east side of his land a number of logs, which were delivered to defendants; but it appears that defendants were cutting upon lands adjoining on the west, and plaintiff insists that,,notwithstanding his repeated protests, defendants came across the line, and cut and carried away from plaintiff’s land a large number of logs, claiming at the time that the timber so cut was not on plaintiff’s land. On the trial,- defendants did not
The judgment is reversed, and a new trial ordered.