Bewick v. Butterfield
| Decision Date | 17 February 1886 |
| Citation | 60 Mich. 203,26 N.W. 881 |
| Court | Michigan Supreme Court |
| Parties | BEWICK and others v. BUTTERFIELD and others. |
Error to Alpena.
Turnbull & Dafoe, for plaintiffs and appellants.
Kelley & Gilchrist, for defendants.
The plaintiffs brought suit in the Alpena circuit against the defendants, in assumpsit, declaring upon a special count, and also upon the common counts. Defendants pleaded the general issue, and gave notice of set-off, which set-off, however was abandoned upon the trial, being the subject-matter of another suit between the parties. The verdict and judgment were for defendants, from which result the plaintiffs bring error.
The controversy between the parties grows out of the driving or running of logs in the West branch of Hubbard lake, in the summer of 1881. The West branch is formed by the union of Comstock and Brown creek, some three or four miles from the lake. The plaintiffs had a large amount of logs in these two creeks, which they were running to the lake. A short distance below the merging of these creeks into the West branch, a stream, known as "Butterfield Creek," runs into the main stream. The defendants had a large number of logs in this creek, which they were also running into the lake. When the first drive of plaintiffs went down, some of defendants' logs floated or were run out into the branch and mixed with plaintiffs' logs, but for the driving of these no charge was made. After the first drive of plaintiffs passed the mouth of Butterfield creek, the defendants threw a boom across the West branch, above the Butterfield creek, so as to gain, as they claimed, a "clear river" in which to run their logs to the lake. It was claimed by plaintiffs that defendants ran a large amount of logs out of this creek into the main river, and left them, so that when the second drive of plaintiffs came down, after the removal of the boom, they were obliged to run defendants' logs with their own to the lake, and that such work was worth 20 cents per thousand feet. The plaintiffs claimed an express contract on the part of defendants to pay for the running of these logs.
The testimony in relation to this alleged contract was confined to the evidence of William B. Comstock on the part of the plaintiffs, and George A. Butterfield on behalf of the defendants. About the time of the starting of plaintiffs' second drive, Comstock and Butterfield had a conversation in the city of Alpena. Comstock claims that he told Butterfield that he must get his logs out of the way, and Butterfield said "if his logs were in the way, and plaintiffs did any work upon them, defendants would pay them for it." Butterfield testifies that in this conversation Comstock complained that plaintiffs' men were doing all the driving; that they were driving defendants' logs and should expect pay for it, at the regular rate, from the mouth of Hubbard lake down; that he told Comstock he "guessed we were doing our share, and if they [plaintiffs] were doing any more work on our logs than we were doing on theirs, or any work that they were entitled to pay for, we would pay them for it." Comstock testifies that after driving the logs down to Hubbard lake they drove them into a boom, and counted defendants' logs, and made out a bill of the same, and in June took it over to Butterfield, and presented it to him. The bill, at 20 cents per thousand amounted to $211.08, upon which was a credit to defendants for running some of plaintiffs' logs, amounting to $70.
Defendants made no protest against the correctness of this bill, or their liability for the same, but kept it until July or August, when they presented plaintiffs with a bill for running logs, amounting to some $690, and giving credit thereon to plaintiffs for running logs for the same number of feet and price per thousand as claimed on plaintiffs' bill, and for the identical logs. Plaintiffs not accepting defendants' charges, this suit was brought.
Upon the trial a large amount of evidence was given by defendants tending to show, under Butterfield's theory of the talk in Alpena, that they did their full share of the work in running the mixed logs, and therefore plaintiffs did no work for which they were entitled to pay. This testimony was objected to by plaintiffs' counsel as immaterial and irrelevant, but we think it was entirely proper. Defendants had a right to introduce any testimony tending to support their defense under their own theory of the agreement between Comstock and Butterfield. If defendants' promise was only to pay for what work was necessarily done by plaintiffs on defendants' logs, over and above what they ought to have done in running their own and defendants' together, and for the amount of plaintiffs' work, if they did proportionally more on defendants' logs than defendants did upon theirs, it certainly was competent...
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Smith v. Duncan
...then the issue was one of fact to be submitted to the jury as to what contract was in fact made. In the case of Bewick v. Butterfield, 60 Mich. 203, 26 N. W. 881, the court gave a charge similar to that requested in this case. In the Michigan case the court "The remarks of the court in rela......
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Power State Bank v. Carver
...that the defendants understood it otherwise, and were therefore, under the charge, entitled to the verdict. The case of Bewick v. Butterfield, 60 Mich. 203, 26 N. W. 881, was one in which the plaintiffs sued to recover compensation for labor in running, together with their own, certain logs......