59 Mich. 263 | Mich. | 1886
The plaintiff brought an action of trover against the defendant for the conversion of certain pine saw-logs. On the first day of November, 1877, one Sextus N. Wilcox was the owner of certain land situated upon sections 31 and 32, in township 14 N., range 11 W., upon which was a quantity of standing pine timber trees, estimated to contain 1,700,000 feet, more or less, of merchantable pine saw-logs. On that day he entered into a written contract with the plaintiff in this suit, by which plaintiff agreed to purchase, and Wilcox agreed to sell to him, said timber for the sum of $2,500, payable in two equal payments on the first days of June and July, 1878. To enable plaintiff to make the purchase, Wilcox agreed to advance plaintiff, in supplies necessary to prosecute the job, a sum not exceeding three dollars from the store of S. N. Wilcox & Co., or in lumber from S. N. Wilcox Lumbering Company, before the cutting was commenced, and to pay the further sum of seventy-five cents per thousand feet as fast as the logs
The legal effect of this contract was that Wilcox, the owner of the land, sold to Utley the pine timber thereon for $2,500, Utley to cut and remove the same therefrom during the winter of 1877-1878, or, if it could not be done for lack of snow, then he was to cut and remove the same during the winter of 1878-79, and before May 1, 1879. The title of
The record shows that Utley went on, and cut, up to April 18, 1878, under the above contract, 5,272 pine saw-logs, amounting to 878,024 feet, board measure, 1,365 of which had been put afloat in Muskegon river by Utley, 3,757 were on the skids on Utley’s job, 414 were on the prairie, and 336 were at Murphy’s farm. By the contract Utley had the next winter to put these logs in the river, and as many more as he desired to cut; but, with reference to these logs already cut, and not put in, the parties made a new contract, by which Utley agreed to put them in the Muskegon river on or before September 1,1878. Wilcox had advanced, up to April 18, 1878, $2,178.81, and Utley also received from Wilcox horses, trucks and other property, amounting to $1,030.18. Utley had not been able to effect a sale of the logs, and he, by that agreement, sold them to Wilcox for $6.50 per thousand feet; the sum of $1.75 to be paid on each thousand feet on the Utley job, which were cut on the eighteenth of April, 1878, as fast as the same were delivered under this contract; and the balance, if any, when the contract was fully performed, after applying on the price the
“ And whereas, Torrent & Ducey, of Muskegon, Michigan, have agreed this day to purchase said logs of said Wilcox at five dollars and fifty cents ($5.50) per thousand feet afloat in Muskegon river, by a written agreement between him and said Torrent & Ducey, which is hereby referred to for more specific particulars; and whereas, said Utley wants to put said timber in for said Wilcox and said Torrent & Ducey, and by this agreement promises and binds himself to put said logs into said Muskegon river in time for the drive on Muskegon river, in year 1879, for same terms of payment as those made by Torrent & Ducey to Wilcox, and said Utley is to pay one-half the scaling, and board the scaler while scaling said job — the terms of pay being one dollar and twenty-five cents ($1.25) per thousand (M) feet as fast as cut and skidded, scaled and reported, and two dollars and twenty-five cents ($2.25) when drawn to Muskegon river, and the balance in notes due June 15, July 15, and August 15, 1879; and as it is said Wilcox who owns said timber, and who expects to advance the supplies to Utley on said job, and who is to receive and handle the money for said logs — it is mutually agreed by and between the parties hereto that said Wilcox shall retain out of such^payments the full pay for such advances as he may make from time to time, and may also retain out of the final payments for his timber the sum of fifteen hundred dollars ($1,500) in full payment for all such pine saw-logs as he may cut and*268 remove from said land within one year from this date. And said Utley further agrees to and with said Wilcox to cut ■and put afloat in said Muskegon river for said Wilcox all the timber which will make twelve inches and upwards diameter saw-logs of merchantable quality, on the east half of the southeast quarter of section five (5), in town (13) north, of range eleven (11) west, in said Newaygo county, Michigan, and to pay half of the scaler’s wages, and cut the logs, and get them afloat in Muskegon river in usual time, in 1879, for the sum of two dollars and fifty cents ($2.50) per thousand feet, Doyle’s scale, payable in supplies and money at the rate of one dollar ($1.00) per thousand feet as fast as cut and skidded, and one dollar and twenty-five cents ($1.25) per thousand feet when drawn, and balance when afloat, as above; but out of these various payments said Wilcox is to receive’full payment for all the old store account of said Utley due to the firm of S. N. Wilcox & Oo., at White Cloud; and all account for lumber and so forth to them, or to the S. N. Wilcox Lumbering Companjq from said Utley, or said Utley and his son, as copartners, with proper interest on same, is to be reserved out of the prices for putting in above referred to, and said Utley agrees and binds himself to perform as above, in every particular, and to contribute all horses, sleds, trucks, and supplies to said job which he now owns in whole or in part, or which he may hereafter acquire, or shall be supplied by said Wilcox, and these supplies, teams, and so forth shall be held as property of said Wilcox as security for the performance of said contract above mentioned, and for the security for any advances said Wilcox has made or may make to said Utley.
“In witness whereof, the parties hereto have signed this instrument in duplicate the day and date first above written.
“ William S. Utley.
“ Sextus N. Wilcox.”
The other contract was executed between Torrent & Dueey and Wilcox, by which it was recited that Utley had that day agreed with Wilcox to cut and put afloat in Muskegon river, in time for the drive of 1879, all the pine timber ■on the lands of said Wilcox, in township 14 N., range 11 W., on sections 31 and 32, which he (Utley) cut from last winter, and which logs were sold to Torrent & Ducey, and which are supposed to be about 1,000,000 feet, more or less. The price agreed to be paid was $5.50 per thousand feet,
This contract between Wilcox and Utley modifies the first, contract between these parties in two particulars, and in but two particulars which are material to the questions under-consideration : (1) Fourteen hundred dollars having already been paid on the twenty-five hundred dollars which was-then fixed for the purchase price of the timber, by this contract such purchase price is increased four hundred dollars;, (2) the time for removing the timber by the first contract was limited to May 1, 1879, and by this contract the time is extended or fixed at one year from the fourteenth of November, 1878. No change is made in the ownership of such timber as plaintiff may cut and remove in the time limited. It is true that the sale of the logs to Torrent & Ducey was-made by S. N. Wilcox, but the sale was made with the assent of Utley, and was for his benefit. Now; whether this contract is to be considered as a modification of the contract first entered into between Wilcox and Utley in the particulars above noted, or as a new contract, can make no-difference in the result. Utley agreed to cut and put in all the logs upon the land, of twelve inches in diameter and upwards, in time for the drive of 1879, and Wilcox is to-retain, out of the purchase price of the logs sold to Torrent & Ducey, “ fifteen hundred dollars, in full payment for all such fine satu-logs as he may out and remóse from said land' within one year from this date;” i. e., from November 11, 1878. From all the contracts and acts of the parties in connection therewith, the intention clearly appears to limit the time in which the timber on the sections named should be cut and removed, and that the sale was confined to such timber as should be cut and removed within the specified time. The case comes directly within the previous decisions-of this Court, and the court was not in error for directing a-verdict for defendant, and it must be affirmed.