95 Mich. 145 | Mich. | 1893
The terms of the lease involving the questions now raised are stated in 87 Mich. 476. The evidence there given is also substantially the same as in the present record, which, in addition, contains evidence, given on the part of plaintiff, tending to ■show that at the time of the alleged surrender of the property to plaintiff there were logs in the mill-yard, lumber and slabs in the mill, and lumber upon the docks and in the yard. The evidence will be referred to in connection with the legal questions to be determined.
“ Mr. White, in his capacity as agent or superintendent of the job of cutting these logs, had no implied authority, arising from his position as such agent, which would authorize him to make any arrangement with the plaintiff looking towards the continuance of the defendants’ tenancy after the logs were cut and the mill shut down for good.”
Upon this point the court instructed the jury as follows:
“ The cutting of the timber of itself would determine the contract if no words were spoken. For instance, the defendants hired the mill for a specified time and purpose; when that time arrived, and the purpose was fulfilled by the cutting of the timber, then their rights, of course, by operation of law merely, terminated, and they could not hold it longer without the plaintiff’s consenting to a renewal of the lease; that is clear; and if no words were spoken other than discharging the employes and closing the mill, and leaving it in the plaintiff’s hands, it went back to the plaintiff’s hands, and he could not recover on the mere ground that it was in the hands of the defendants. - But I think this also: That although White was*149 the foreman and employé mainly for the purpose of cutting the timber under the lease, and acting for the defend•ants in this suit, and being on the ground and acting for them, when an objection was made by the plaintiff for the reason assigned by him, White had the power to make the arrangement claimed by the plaintiff to have been made; .and if the plaintiff refused to take the mill back on the ground' assigned, and White said, ‘ All right. Wait a few days. Major Watson will be up to surrender the mill •over to you/ — and he relied upon it, it would not be in the possession of the plaintiff meanwhile, but it would still be under the control and dominion of the defendants.”
The court erred, as already- shown, in holding, as it did in the language above quoted, that cutting the timber and -shutting down the mill terminated the lease. It entirely •omitted certain obligations resting upon defendants, and .specified in the lease, which have been pointed out above. But this part of the charge was favorable to the defendants, -and was in exact .accord with their theory.
The conversation with White, as detailed by plaintiff, made no new arrangement with the defendants, nor changed the terms of the lease. Plaintiff testified that White told him that he had no authority to turn over the mill, and that he did not offer to turn it over, but said that Watson would attend to that when he came up. Defendants resided in Grand Bapids, while the mill was situated in Osceola county, a long distance away. Only one of the defendants visited the mill during the time of the lease, and he only once or twice. White was their sole agent there, with -authority to employ and discharge men, and had the supervision of the entire business. If he had no authority to make the statement attributed to him, which counsel and court seem to have construed into .some new arrangement, it is equally clear that he had no authority to bind his principals by turning the property over with the conditions of the lease unfulfilled. But the plaintiff, under the case made by him, did not recognize the lease as terminated, or
The court erred, but against the plaintiff, in saying to the jury that, in the absence of spoken words, the mill was left in plaintiff’s hands and went back to him. Plaintiff was employed by the defendants, was himself discharged, but the rent was unpaid. He lived in a house near by, and saw all the preparations for closing. But the legal result of all this was not to restore to plaintiff the possession and control of the property, because the mill was not in the condition in which defendants had agreed it should be when turned over, and defendants had signified no intention not to perform their contract in this regard.
“ Even if the mill was turned over to the plaintiff, if you find such to be the fact, yet if, by reason of the carelessness and mismanagement of the defendants, fire had been taken from the mill, and put into the sawdust adjoining, it would constitute a breach of the contract; and if the fire remained there without the knowledge of the plaintiff, and afterwards broke out, and destroyed the mill,*151 and it is traceable to the carelessness of the defendants, then they are liable.”
The declaration set forth the contract in full; alleged the duties of the defendants under it; that the- defendants; wholly neglected such duties and their obligations under the contract; neglected to keep a night watchman; neglected due care and diligence to preserve the property from damage and destruction by fire; allowed the slabs, sawdust, and other debris to accumulate in and about and immediately adjoining the mill; negligently threw and deposited the fire from the furnace into, upon, and about such sawdust and other debris. All these acts were alleged to be breaches of the contract. Plaintiff planted his right of action solely upon the violation of the contract, and, by his proof, connected the injury directly with such violation. It is immaterial, therefore, whether .the injury resulted, before or after the termination of the lease. In either event, an action would lie upon the contract. It is true-, the declaration alleged that defendants had not returned' the property to plaintiff; but this was not the gist of the-action, nor did it of itself afford an independent ground of recovery. We think the instruction was correct.
Certainly the plaintiff was not called upon to watch the property, or take any steps to protect it, until he knew that the watchman was withdrawn, and that defendants had withdrawn all protection over the property. Whether this was so was a question of fact for the jury. If the plaintiff’s evidence be true in regard to throwing the fire from the furnace into the sawdust and slabs, White, whose negligence was the negligence of the defendants, was guilty of gross negligence, and a gross disregard of plaintiff’s rights and his own employers’ interests. The testimony on plaintiff’s part showed that he knew that the sawdust pile had repeatedly taken fire, and that he had helped to put it «out. Under these circumstances, the law will not relieve ■ defendants from their own negligence' without showing that plaintiff knew that they had abandoned the property, and would thereafter exercise no care or control over it. It is '.not entirely clear that any obligation rested upon him to Hook after the property until the lease was terminated. Plaintiff had no actual knowledge that there was fire in the sawdust. He knew that there was danger of its being there, and so informed White. White, recognizing the danger, and knowing the provision of the contract, kept' a watchman the following. night, and then withdrew him, ■Without any notice to plaintiff. Under these circumstances,
The charge was as favorable to the defendants as was justified by the evidence.
Judgment affirmed.