Blodgett v. Hovey
| Decision Date | 13 May 1892 |
| Citation | 52 N.W. 149,91 Mich. 571 |
| Court | Michigan Supreme Court |
| Parties | BLODGETT v. HOVEY et al. |
Error to circuit court, Kent county; ALLEN C. ADSIT, Judge.
Action by Delos A. Blodgett against Horatio N. Hovey and others for the price of lumber. The court directed a verdict for plaintiff. Defendants appeal. Reversed.
Smith, Nims, Hoyt & Erwin, for appellants.
Uhl & Crane, for appellee.
On the 22d day of August, 1889, plaintiff wrote to defendants as follows: Defendants appended the following reply to plaintiff's letter, and returned the letter: "Gents We accept the above." The logs were delivered to defendants before August 28, 1889. Prior to the 29th of October, 1889, defendants had cut from these logs 2,882,602 feet of lumber, and the same had been shipped away. On October 28th there was upon defendants' dock, in dead pile, 75,000 feet of lumber cut from these same logs, and between October 28 and November 4, 1889, defendants had cut up 2,877 of said logs, which made 304,100 feet of lumber. On November 4, 1889, defendants' mill was burned and this 379,100 feet of lumber was destroyed. Plaintiff sues for the contract price of the lumber, and defendants insist that at the time of the fire the title had not passed. The court directed a verdict for plaintiff, and defendants appeal.
Defendants entered into contracts with third parties for the sale of this entire cut. Two of the defendants' witnesses testify that, after defendants had commenced sawing the lumber, plaintiff came to defendants' office, and Plaintiff admits a conversation relative to insurance upon the lumber, but claims that it was had before the contract was entered into. This contract is not one for the sale of logs. The proposition was to deliver to defendants "30,000 logs, marked '179,' or as many as it will take to make 3,000,000 feet of merchantable piece stuff," to be sawed for plaintiff at a given price, or to deliver to defendants 30,000 logs, marked "179," or as many as it will take to make 3,000,000 feet of merchantable piece stuff, and to sell to defendants the lumber to be manufactured from such logs at given prices. The contract does not provide for the sale of a given quantity of logs at the rate of $7.12 1/2 per M. feet for merchantable lumber, and $3.50 per M. feet for culls, 6 and 8 feet; but is to pay $1.50 per M. for sawing the lumber, and then to sell the lumber at given prices. The lumber was figured and charged at the prices given in the contract, and the saw bill was credited. In plaintiff's bill of particulars the amount of $27,518.80 is charged to defendants at the rates given in the contract, and they are credited with the sum of $4,892.55 for sawing the lumber. The lumber was not cross piled, but was dead piled, as the contract provided. It is clear that no title passed to the logs, and the question is, when did the title to the lumber manufactured therefrom pass? The rule is well established that, Blackb. Sales, 120; Lingham v. Eggleston, 27 Mich. 324; Byles v. Colier, 54 Mich. 1, 19 N.W. 565. There is nothing in this contract that rebuts this presumption. As in Lingham v. Eggleston, neither quantity nor quality of the lumber is determined. As in Jenkinson v. Monroe, 61 Mich. 454, 28 N.W. 663, the parties subsequently agreed upon an inspector, but it was agreed that the inspection should be had at the time of the shipment of the lumber. In the Jenkinson Case the contract was for all the lumber to be cut from a given lot of logs, defendants were to pay for freighting the logs to the mill, and were also to pay the saw bill, and were to direct as to how the lumber should be cut. The terms of the contract itself tended to negative the presumption that the title was to remain in the vendor after the logs had been cut in accordance with the directions of defendants, they had paid freight and saw bill, and the lumber had been "delivered upon the docks."
In the present case there is nothing in the contract itself which necessarily indicates that the plaintiff intended that the title to either logs or lumber should pass until quantity and quality should be determined. Under it something remained to be done by the vendor, as no inspection had been provided for. It is true that the lumber when manufactured would be in possession of defendants, but the title to the logs was clearly in plaintiff, and it cannot be insisted that the title to each board passed as it came from the saw, or that the act of defendants, in the absence of some indication of such intent on the part of plaintiff, should pass the title. Standing upon the contract alone, defendants would be entitled to a verdict. A different intent can only be gathered, if at all, from a consideration of the contract in the light of the acts done after its execution, but all that was done should be considered. Here there was more than the mere naked appointment of an inspector. If it was true that after the defendants had commenced sawing, plaintiff went to defendants' office, and had the conversation related respecting the insurance of the lumber, and defendants did not insure this lumber in consequence, that conduct would seem to be conclusive as to how the parties themselves construed the contract; and the mere agreement upon an inspector, who, at the time of shipment, was to distinguish between the three grades of lumber, and fix the amount to be paid by defendants to plaintiff, would not disturb that construction. If, at that time, plaintiff put such a construction upon the contract, and defendants acquiesced in it, and in consequence, defendants refrained from insuring the lumber, plaintiff cannot now insist upon a different construction to defendants' prejudice. One of the defendants' witnesses who had testified to the conversation between plaintiff and defendant Hovey relative to the insurance, and that the conversation had been subsequently, and within two or three days, recalled, was...
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