Smith v. Kelly
| Decision Date | 28 April 1880 |
| Citation | 5 N.W. 437,43 Mich. 390 |
| Court | Michigan Supreme Court |
| Parties | SMITH v. KELLY. |
Where in the purchase of certain logs, it was agreed to take the boom company's scale, held, that it must be presumed to be the scale entered by the company in its books, and it was not necessary to produce the tallies. Certain instructions held incorrect as originally given, and that a recalling of the jury, in absence of defendant's counsel, and correcting the error, was not erroneous.
Error to Saginaw.
Tarnsey & Weadock, for defendant in error.
Kelly sued Smith to recover back the price paid for logs not delivered. He bought a lot of logs lying in the boom of the Tittabawassee Boom Company, estimated at 75,000 feet, which were mixed up in a large lot, and which were to be delivered to him in another boom, to which they were taken in small parcels, and, as he claimed, ran short in quantity about 19,000 feet. The number of logs held out, but not the measurement. The chief controversy was whether Kelly was to take the logs at a prior scale made by one Newton, or at the boom company's scale. There was also a claim by defendant that if he took at a rescale it was to be by a scaler to be agreed on. A question arose whether Smith, who was in fact an agent for another party, could be held for the money after he had paid it to his principal. It was found, however, by the jury, that Kelly knew nothing of the agency.
One principal controversy on the trial was concerning proof of the boom company's scale. It appeared to have been made somewhat more loosely than scales for other purposes. It was proved to have been done by the scaler giving his figures to a tally-boy, who reported them to a clerk, who in turn handed them in to the office. The tally-boy was not produced, nor his original tallies. It appeared that Smith who was to pay the boomage, settled by the books, and paid in only the amount alleged by Kelly to have been all that he received.
The court held that if it was agreed between Kelly and Smith that the quantity should be determined by the boom company's scale, and as settled between the parties and the boom company, then that scale must govern, and they must be deemed to have contracted with reference to the manner in which the boom company ordinarily did business. This is complained of. We think that it must be presumed from the form of this bill of exceptions that there was testimony tending to show just such an agreement, and especially so as no remark was made pointing out any want of correctness in this regard. But it is not denied there was testimony to show an agreement to abide by...
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