Barton v. Gray
| Decision Date | 19 April 1882 |
| Court | Michigan Supreme Court |
| Parties | BARTON v. GRAY. |
It is not necessary that special counts in assumpsit should be harmonious, even when the same instrument is set out in each as the foundation of an action. And the court cannot refuse to receive evidence under the declaration on any such ground as that what would support one count would defeat another.
Fatal objections to a declaration should be taken by demurrer. If the defendant delays to take them until the trial, all intendments should be against him, and if it is possible to sustain the case by amendments, they should be permitted.
A contract whereby one tenant in common employs a person to cut timber on the common property is not on its face void because not showing the consent of the other owners. It will be presumed, if necessary to sustain it, that the consent of the others was had or was expected to be obtained.
It is not a fatal variance between a declaration and the proofs that the declaration avers that the plaintiff performed a continuous contract for a long space of time, to-wit, five years, and the evidence shows he performed for three years only.
Case made from Newaygo.
Jas Barton and A.G. Day, for plaintiff.
E.L. Gray, in pro. per., for defendant.
The declaration in this case contains three special counts in assumpsit and the common counts. The first special count sets out a contract under seal between the parties, whereby the plaintiff was employed by the defendant to cut, haul and deliver in the south branch of the Pere Marquette river during the years 1872 and 1873 such lumber logs as could be cut on certain described lands, and on the undivided half of certain other described lands, for a specified price per thousand feet. Also to cut, haul and deliver afloat in said stream all the logs that could be cut from two specified sections "at the rate of 2,000,000 feet board measure every winter, and as much more as said Gray and the other owners of said timber shall desire." It then avers that plaintiff entered upon the performance of said contract and continued in the performance "for a certain space of time, to-wit, for the space of five years next following," but that said defendant, before the timber had all been cut from said two specified sections, and while a large quantity, to-wit, 8,000,000 feet, remained uncut wrongfully and injuriously discharged the plaintiff from the performance, etc.
The second count sets out the same contract; avers performance for a time as in the other, and then a postponement of the annual cutting by agreement of the parties from year to year at the defendant's request until the first day of December, 1877, an offer by the plaintiff then to perform and a refusal by the plaintiff to permit it. The third count is also upon the same contract, and avers performance by the plaintiff for three years; an agreement by the parties at the request of the plaintiff to postpone the annual performance from year to year until the first day of December, 1877; offer then to perform and refusal as before. The defendant pleaded the general issue with notice of special matter of defence which is not material now. When the case went to trial the defendant interposed objections to the plaintiff's proofs. These objections went either to the validity of the contract or the legal sufficiency of the declaration, and if well taken, would have been available on general demurrer. We have observed of late a growing tendency towards the postponement of such objections until the parties have been put to the expense of a preparation for trial, or perhaps until, at great expense, a trial has been gone through with; and the practice is not one to be encouraged.
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