Atkinson v. Morse

• Decision Date: 21 October 1886
• Citation: 29 N.W. 711,63 Mich. 276
• Court: Michigan Supreme Court
• Parties: ATKINSON and others v. MORSE.

29 N.W. 711

63 Mich. 276

ATKINSON and others v. MORSE.

Supreme Court of Michigan

October 21, 1886

Error to Alpena.

Turnbull & Dafoe, for plaintiffs.

C.E Williams, for defendant and appellant.

CHAMPLIN J.

Plaintiffs declared specially on a verbal contract made with the defendant, by the terms of which plaintiffs allege they were to cut, haul, and deliver, on the banks of the lower South branch of Thunder Bay river, all the merchantable cedar on a description of land known as the "White Eighty," owned by defendant; the defendant to pay therefor, from time to time, as the operation progressed, at prices agreed upon, in supplies, etc., and the balance, over and above the amount so furnished, on the final accounting when the work should terminate, if anything should then be found due. Plaintiffs also allege that the number and inspection of the telegraph poles, railroad ties, and paving posts were to be determined by an inspector provided by the defendant, and to be paid for by him--the inspection to take place as the poles, ties, and posts were piled in the woods; and also claimed that the supplies furnished by the defendant were to be so furnished at certain specified prices; that on November 25, 1883, plaintiffs began cutting under the contract, performed considerable work, and that defendant refused to perform his part of the agreement. Plaintiffs also allege that on or about the middle of February, 1884, defendant notified them to quit the job, and that by means of this they were deprived of great profits and gains that they would have made had they been allowed to complete the contract; also declared on the common counts in assumpsit, and furnished a bill of particulars of their demand.

The defendant pleaded the general issue, and gave notice of set-off, and also notice that he would insist and prove, in defense to plaintiffs' claim, that the only contract made in the premises was that the plaintiffs might enter on land of the defendant situated on section 15, town 29 N., range 7 E., Michigan, known as the "White Eighty," and cut and manufacture all the cedar thereon, suitable for the purpose, into telegraph poles, and the residue, not suitable for poles, into railroad ties and posts, and to deliver the same on the bank of the river, piled in a suitable manner, at the water's edge, to be convenient for inspection and putting afloat; that the cedar was to be cut from down timber, and, after the down timber was exhausted, then from standing green timber; that the manufactured timber was to be merchantable in all respects, according to standard rules of inspection, and the inspection to be made on the river bank by some competent person, who was to be paid by the parties jointly,--the work to be done in a good and workman-like manner, and to be completed on the breaking up of the logging season in the spring of 1884; that it was expressly understood and agreed that no timber suitable for telegraph poles was to be cut into ties and posts; and that the principal object and purpose of the contract was to procure poles, and that ties and posts were to be made only from such timber as should be unsuitable for poles. Defendant also gave notice that he would prove that plaintiffs departed from the terms of the contract in all essential particulars, and claimed damages therefor.

The jury returned a verdict for the plaintiffs for $550.

The record presents 44 assignments of error, which counsel for defendant has grouped under four principal heads in his brief.

The first pertains to challenges made to the array of jurors impaneled to try the cause. The county clerk had disobeyed the plain instructions of the statute, and had put the packages containing the lists of grand and petit jurors returned from the three wards of the city of Alpena all into one box, and had drawn promiscuously from the box the names of both grand and petit jurors, to attend court as petit jurors. When the cause was reached for trial, a jury was drawn from the box, and several of the panel turned out to have been returned as grand jurors, and not as petit jurors. The defendant's counsel challenged the array. His challenge was entertained, and the court made an order discharging all the jurors drawn from the city of Alpena from further attendance or service, and directed the sheriff and clerk to draw, from the list of names properly returned from the city, 12 jurors, four from each ward, and that the sheriff summon them to appear forthwith. We think this was the proper course to pursue, under the circumstances, and was fully warranted by section 7578 of Howell's Statutes....