CHAMPLIN, J.
This
case was before this court in the April term, 1882, and is
reported in 48 Mich. 164, and 12 N.W. 30. The declaration as
originally filed contained three special counts, and the
common counts in assumpsit. The second and third special counts and the common counts were abandoned on the
trial, and the plaintiff elected to rely entirely for a right
of recovery upon the first special count of his declaration.
This announcement was made after the plaintiff had introduced
his evidence, and after one witness had been examined on
behalf of defendant. There was no formal entry of
discontinuance as to the two special and the common counts
and no formal amendments to the declaration filed. The trial
proceeded and concluded upon the announcement and election
made by counsel for plaintiff in open court
and resulted in a general verdict for the plaintiff, upon
which judgment was rendered. The record is brought to this
court upon a case made after judgment. The errors assigned
are based upon a variance between the proofs and the first
count of the declaration, and in the charge of the court to
the jury respecting the application of the statute of frauds
to the facts of the case, the measure of damages, and the
subsequent action of the court in restricting and applying
the verdict of the jury to the first count of the
declaration. The first count of the declaration set forth an
agreement in writing entered into between the parties, and
dated August 31, 1872, as follows:
"Agreement
made and concluded this thirty-first day of August, 1872
between Edgar L. Gray, of Newaygo, Michigan, party of the
first part, and William Barton, of the town of Big Prairie
and state aforesaid, party of the second part, witnesseth:
That the said William Barton, party of the second part, for
the consideration hereinafter mentioned to be performed by
the said party of the first part, does hereby covenant and
agree with said Gray as follows, to-wit: To cut, haul,
deliver, and float two hundred and fifty thousand feet,
board measure, of good, sound, merchantable pine saw-logs,
in the south branch of the Pere Marquette river; said logs
to be cut from off the undivided 1/2 of S.W. 1/4 of N.W.
1/4, and W. 1/2 of S.W. 1/4, sec. 13, T. 15 N., R. 14 W.,
and so put afloat in said stream on or before the first day
of November next, and, if sufficient water for that
purpose, to run said logs during said month of November to
the junction of said stream with the Beaver creek, on section 11 in the town aforesaid, with an ample
force, and as soon after the first day of said month of
November as the same can be done.
"Secondly.
To cut, haul, and deliver afloat in said first-mentioned
stream the balance of the timber on the land above
described, cut up into saw-logs of the kind and quality
first above described, and run the same into the main river
below the junction of Beaver creek and said first mentioned
stream, with an ample force of men, as early in the spring
of 1873 as the water will permit it to be done.
"Thirdly.
To cut, haul, and deliver afloat all logs that can be cut
from off of the N.E. 1/4 of S.E. 1/2 of sec. 14, T. 15 N.,
R. 14 W., that are sound and merchantable, and from timber
that is now down, and on the east side of said
first-mentioned stream, and run the same out into the main
river below the junction of said with an ample force of
men, as early in the spring of 1873 as the water will
permit it to be done.
"Fourthly.
To cut, haul, and deliver all logs that can be cut from
timber, now down and within forty rods of Beaver creek, and
on secs. 14 and 15, and put afloat in said creek on or
before the time for driving logs, in the spring of 1873.
"Fifthly.
To cut, haul, and deliver afloat all logs that can be cut
from off of the undivided 1/2 of S. 1/2 of S.E. 1/4, and
S.E. 1/4 of S.W. 1/4 sec. 10, T. 15 N., R. 14 W., and the
whole of the N. 1/2 of S.E. 1/4 of sec. 10, T. 15 N., R. 14
W., in the main south branch of Pere Marquette river, and
below its junction with the Beaver creek on or before the
time for driving said logs, in the spring of 1873.
"Sixthly.
To cut, haul, and deliver afloat in said streams all the
logs that can be cut from off of said section 14 and
section 15, in the town aforesaid, at the rate of two
million feet, board measure, every winter, and as much more
as said Gray and the other owners of said timber shall
desire. All logs to be long butted, when necessary, and are
to be free from butt-shakes, and to be otherwise free from
ring-rot, or any other defects which would render the same
unmerchantable in quality. No logs cut from off of said
lands on said section 13 to scale less than twelve inches
in diameter at the small end, scaling measurement, and the
balance of the timber to be cut as aforesaid to scale not
less than ten inches in diameter at the
small end, and deductions to
be made in all crooked logs so as to make them straight, to
be measured or scaled by a competent person that may be
selected by the said parties to this contract, and in
accordance with Scribner's scale; said Barton to board.
"The
said party of the first part agrees to pay to said Barton,
for logs to be delivered as aforesaid, one thousand dollars
on or before the twentieth day of September, one thousand
dollars on or before the first day of November next, and then the amount of one dollar and
twenty-five cents per thousand feet on the fifteenth day of
each of the months of January, February, and March, 1873,
as fast as the logs cut from off of said section 10 are
scaled and delivered afloat as aforesaid, and the balance
of said price of fifty cents per thousand feet, board
measure, on the first day of July, 1873, and also the
amount of two dollars per thousand feet on the fifteenth
day of each of the months of January, February, and March,
1873, for logs cut from off of said lands on said sections
13 and 14, and run as aforesaid, and the balance on or
before the first day of August next. The said William
Barton also agrees to proceed next week with a sufficient
force of men and teams to clear said south branch of Pere
Marquette river from east line of said land on section 13,
aforesaid, to its junction with the Beaver creek, and have
it well cleared for the running of logs within thirty days
from date. All logs put in by said Barton, in either of the
streams aforesaid, in any winter succeeding the coming one,
and put afloat in said streams, said Gray is to pay for at
the rate of two dollars and fifty cents per thousand feet,
board measure, for his share of said logs, and as fast as
said work progresses. If required by said Gray, said Barton
is to secure said Gray for advances, and not to sublet this
contract, and any substantial non-compliance by said Barton
of the agreement by him made shall make a forfeiture of the
same at the option of said Gray.
"In
witness whereof, the parties to this contract have hereunto
set their hands and seals, the day and year first above
written.
"EDGAR
L. GRAY. (L.S.)
"WM.
BARTON." (L.S.)
Then
the declaration alleges the mutual promise of performance of
the contract by the parties; and then alleges that the
defendant was the owner in fee of the undivided half of the
lands described as being upon sections 14 and 15, mentioned
in the contract, and is the same land and timber referred to
in paragraph 6 of said agreement; that he entered upon the
performance of the contract and performed all the work and
labor mentioned in the contract by him to be performed,
to-wit, for the space of five years then next following, and
was always ready, willing, and able to perform fully and in
all things the said contract on his part to be
performed; yet the defendant, before the pine timber on
sections 14 and 15 had all been hauled and delivered afloat
in the streams, "and while a large quantity of pine
timber, to-wit, eight million feet, board measure, of pine
timber still remained uncut, to-wit, on the first day of
December, 1877," wrongfully and injuriously discharged
the plaintiff from the performance of such agreement, and the
said promises and undertakings by him to be performed, and
hindered and prevented the said plaintiff from the
performance thereof, whereby he wholly lost and had been
deprived of all the benefits, profits, and advantages which
he otherwise might and would have derived from performing the
contract.
The
defendant interposed the plea of general issue, and gave
notice of set-off; also of recoupment; and also that the
owners of the other undivided half of the lands to be
lumbered absolutely forbade defendant from cutting and
removing any of the timber on sections 14 and 15 after the
year 1875; that said plaintiff had a like written contract to
cut the pine timber on sections 14 and 15 with the other
undivided owners, and in the year 1875 he released them
therefrom.
At the
trial the plaintiff introduced in evidence the contract set
out in the
first count of the declaration, and also evidence tending to
prove that he entered upon the performance of the contract,
and continued during the logging seasons of 1872-73, 1873-74,
and 1874-75; and in the fall of that year, by mutual
arrangement between the parties, the performance of the
contract was postponed one year; that at the expiration of
this time he offered to perform and was forbidden by
defendant to cut the timber, and from that time he abandoned
the contract, and never after offered to perform; that after
such refusal he entered into a contract with defendant and
other parties to cut and put in...
