Busch v. Wilcox
| Decision Date | 10 October 1890 |
| Citation | 46 N.W. 940,82 Mich. 315 |
| Court | Michigan Supreme Court |
| Parties | BUSCH v. WILCOX. [1] |
Error to circuit court, Wayne county; HENRY A. BREVOORT, Judge.
Action on the case by William C. Busch against George A. Wilcox for fraudulent representations, whereby plaintiff was induced to enter into a logging contract. The jury returned a verdict of $7,296 in plaintiff's favor, and judgment was entered thereon; whereupon defendant took this writ.
John D. Conely, for appellant.
Marston, Cowles & Jerome, for appellee.
In October, 1882, one Remick held the legal title to certain lands in Mackinac county to the amount of about 2,000 acres and one McKay claimed the benefical interest. Remick had advanced the money to pay for the lands, and held them subject to a purchase on estimates by McKay, within a given time. The amount advanced by Remick was about $4,000. McKay attempted to make sale of these lands to Buffalo parties, and through a broker there applied to the firm of Noyes & Sawyer, who were lumber dealers at Buffalo. They telegraphed George A. Wilcox of Detroit to investigate, and the result was that Wilcox purchased the legal title of Remick, jointly for himself and Noyes & Sawyer, with an agreement with McKay that he should receive for his interest one-third of the net profits arising from a disposition of the land and timber thereon. Remick had an estimate of the pine timber on the lands made by Robinson & Flynn which showed that the land contained about 4,000,000 feet of pine. George A. Wilcox had been quite an extensive dealer in pine as had also E. Hall. These parties occupied the same office in Detroit, and knew more or less of each other's transactions. After the above agreement was made McKay called at the office of Mr. Wilcox for the avowed purpose of borrowing money from him, upon the strength of the interest he had in the deal as security. Mr. Wilcox was absent, and McKay borrowed $1,000 from Hall, and assigned his interest in the lands and profits to Hall, as security. Later he borrowed $500 more. The money was not paid by McKay, and Hall became the owner of his interest in the contract on April 28, 1883. Noyes & Sawyer desired to cut the pine in the winter of 1883-84, and convert it into lumber. The other parties interested were not anxious but willing it should be done. In August, 1883, Sawyer, of the firm of Noyes & Sawyer, came to Detroit and had an interview with Hall about letting the job of lumbering the tract during the coming winter. Wilcox was east, in Connecticut. Sawyer went as far north as Alpena, endeavoring to find some lumberman who would take the job of lumbering the land. He did not succeed, and returned to Detroit. Hall soon after making his purchase from McKay sent his own estimator to examine the land, and report the quantity and quality of the pine it contained. His name was Van Riper. He made a report to Hall of the quantity and quality of pine on the tract, and his estimates exceeded 5,000,000 feet, by between one and two hundred thousand. This report Hall had, and also Robinson & Flynn's, in his possession when Sawyer returned to Detroit. The plaintiff, William C. Busch, is a jobber in lumbering contracts, and was at the time possessed of a large outfit. He was at Harper's hospital, in Detroit, being treated for a diseased arm. He and Hall were old time acquaintances, and were on friendly and intimate terms. Hall had visited him at the hospital, and knew that he had no contract for putting in logs the next winter. He recommended him to Sawyer as a competent and proper man to put in the logs from this tract of land, and he took Sawyer to see Busch at the hospital, where the matter was talked over. Busch at first was disinclined to enter into a contract- First, on account of his health; and, second, beause he was not experienced in lumbering upon the north shore of Lake Huron, where these lands were, and knew nothing of the character of the land or the quality of the timber, and offered to rent them his outfit, but this they declined. The result of this interview was that Busch should telegraph for his foreman to come to Detroit, and another interview was had an evening or two later, at which Sawyer, Hall, Busch, and his foreman, Brumby, were present. At this time Hall produced a map of the territory and Van Riper's report or estimates, and also the Robinson & Flynn estimates. The subject-matter of logging the tract was fully discussed. No one of the parties had ever been upon the land. Busch testified that they figured up the plats,-the estimates as shown. It was figured upon the plats, and it amounted to not very considerably over 6,000,000 feet. This by Van Riper's estimates. As to the other estimates, they were simply talked of,-that there was a big estimate but did not suppose that the timber was there estimated at some eight or ten millions. Busch further testifies that, upon that occasion, Mr. Hall said Mr. Van Riper had worked for him so long, and he had cut after his estimates, so that he knew thoroughly what there was, and he relied upon it, and guarantied and warranted the timber; and, as to the quality, that there was somewhere in the neighborhood of one-half of it represented as cork pine, and the balance sap pine. Upon his cross-examination he testified that Hall stated that there was about 6,000,000 feet on the tract: On the subject of cork pine, on cross-examination, he testified: Arrangement was made at that interview by which Busch agreed to put the timber in, and Mr. Hall was to prepare a contract in accordance with such arrangement. It appears also from the testimony that, some time during these interviews, Mr. Busch was informed of the respective interests of the parties in the land and proceeds. Mr. Hall did prepare a contract, which he left with Mr. Busch at Harper's hospital, and which contract was as follows:
"Schedule of lands attached to a memorandum of contract between William C. Busch and George A. Wilcox, said lands being the tracts to be operated under said contract:
SUBDIVISION. SEC. TOWN. RANGE. ACRES.
This contract, when presented to Mr. Busch for his signature, was dated Detroit, September 22, 1883, and was signed "Geo A. Wilcox, by E. Hall." After the contract had been in Busch's possession a few days, he met Mr. Hall as he was going out of the gate of the hospital yard, and the matter of signing the contract by Busch was spoken of. Busch testified that he handed Hall the contract, and told him, after reading it...
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