Hahn v. Fredericks

• Decision Date: 07 October 1874
• Citation: 30 Mich. 223
• Court: Michigan Supreme Court
• Parties: Frank Hahn and another v. August Fredericks

30 Mich. 223

Frank Hahn and another v. August Fredericks

Supreme Court of Michigan

October 7, 1874

Submitted on Briefs July 17, 1874.

Error to Houghton Circuit.

Judgment reversed, with costs, and a new trial granted.

Hubbell & Chadbourne and Pond & Brown, for plaintiffs in error.

Chandler & Grant, for defendant in error.

OPINION

Campbell, J.:

Fredericks sued the Hahns to recover the price of certain wood, which was destroyed by fire before it had been removed by the purchasers. The only question is whether the sale had been completed and the title passed before the fire.

The wood bargained for was two hundred cords of hard wood out of a pile of between three hundred and fifty and four hundred cords, in which was a small amount of soft wood, not piled by itself, but scattered through the other wood. It was all piled in tiers upon Portage Lake, the six rows nearest the lake containing by original measurement about two hundred and one cords, of which it was estimated there were eleven or twelve cords of soft wood. It is claimed that by the terms of purchase two hundred cords were to be taken from the first six tiers, and the seventh tier, to be removed by the purchasers after the opening of navigation, and to be measured by the purchasers. The price was fixed at three dollars and eighty cents per cord. The purchasers declined to take it at the original measurement.

In the spring, when there was some danger of the wood nearest the lake floating off, the evidence tends to show that Fredericks informed Hahns of the danger, and at their request procured two scow loads to be taken to Houghton to their dock, at their expense. It was measured when unloaded, and they took both hard and soft,--the latter at a less price. The remainder was burned shortly after by an extensive fire that ran through that neighborhood in June, 1873.

The action was not brought for the breach of an executory bargain, but to recover the price of the wood upon a completed sale; and the jury found for plaintiff below on that theory. Both parties stand in equal equities, and the decision of the cause rests upon the question of law.

The facts upon which there is no variance were, first that the price was fixed: second, the number of cords to be taken; third, that the purchasers were to remove it; fourth, that they were not to take the soft wood; fifth, that the hard wood was to be measured on the scow as removed from the piles; and, sixth, that until such measurement it could not be ascertained how much of the seventh pile would be needed.

The jury, in answer to a charge and question, found that plaintiff gave defendants below possession of the seven piles nearest the lake; but there is nothing in the testimony that legally tends to show any such thing, any further than it might be inferred from the agreement, that they would have a right to take the wood therefrom. No actual or symbolical possession is shown to have been given or taken. Nor is it clear that this would signify, in the absence of other important facts.

The principal question in the case seems to be, whether the sale actually attached to any two hundred cords which could be identified before the fire.

It is not claimed, and there is nothing to warrant the notion, that the contract was intended to be severable, or to attach to anything less than two hundred cords of hard wood, and of no other wood. There was no sale of the first six piles as they stood, or of the hard wood in...