Saxton v. Pells

• Citation: 98 Mich. 340,57 N.W. 169
• Court: Supreme Court of Michigan
• Decision Date: 05 January 1894
• Parties: SAXTON v. PELLS et al.

57 N.W. 169

98 Mich. 340

SAXTON v. PELLS et al.

Supreme Court of Michigan

January 5, 1894

Error to circuit court, Kent county; William E. Grove, Judge.

Action by Lyman P. Saxton against Edgar Z. Pells and Hannah W Bogardus on the common counts. Judgment for plaintiff. Defendants bring error. Affirmed.

B. T. Halstead, for appellants.

L. G Rutherford, for appellee.

HOOKER J.

The defendants are the owners of a tract of land in this state and made a contract in writing with the plaintiff, by the terms of which he was to cut and manufacture the timber on said land. This was to be done upon the premises, and the proceeds were to be divided. The defendants reserved the right to have their share of the product piled up for them if they so elected. The defendants lived in Illinois, and the contract was made by the plaintiff with Mr. Pells and Mr Bogardus, who acted for Mrs. Bogardus. After the contract was made it was understood that Mr. Pells would be the active manager for the defendants. Objection was made to the introduction of the statement to Mr. Saxton that Mr. Pells would look after the business for himself and Mrs. Bogardus, upon the ground that it tended to vary the written contract of the parties by parol. There is no force in this. It cannot be said to have had that effect. It tended to show that his codefendant consented to his management of the business for her, which would perhaps have been implied from the conduct of the parties if this testimony had not been given. In cutting timber the plaintiff seems to have taken some from adjoining premises, for which a claim of damages was made by the owners. He placed the sum of $150 in the hands of defendant Pells to pay that claim, but it was not used for the purpose, and plaintiff afterwards settled the trespass matter himself. The next item claimed is $4, which plaintiff testifies was his due for loading a car with shingles which belonged to the defendants. Plaintiff further testified that after the shingles were manufactured Mr. Pells said he would take plaintiff's share of the shingles, and they were accordingly drawn out to the railroad, and piled with his share. Another item of $16 was for lumber in the mill yard at the time that plaintiff sold his mill to other parties, which lumber Pells said he would dispose of, and account to plaintiff for. Another item of $148.50 was for plaintiff's three-fourths interest in a load of hemlock...