Chapman v. Keystone Lumber and Salt Manufacturing Co.

• Decision Date: 10 May 1870
• Citation: 20 Mich. 358
• Court: Michigan Supreme Court
• Parties: Bidwell Chapman and George P. Chapman v. Keystone Lumber and Salt Manufacturing Company

20 Mich. 358

Bidwell Chapman and George P. Chapman v. Keystone Lumber and Salt Manufacturing Company

Supreme Court of Michigan

May 10, 1870

Heard May 3, 1870 [Syllabus Material] [Syllabus Material]

Error to Bay Circuit.

Bidwell Chapman and George P. Chapman brought an action of assumpsit in the Circuit Court for the County of Bay, against the "Keystone Lumber and Salt Manufacturing Company," declaring specially: "For that whereas the said defendant, to wit: on the first day of April, 1868, caused to be put a large quantity of logs, to wit, ten thousand logs into the Rifle River, the same being a navigable river in said county, for the purpose of floating the same to the place of manufacture; and whereas the said defendant did not make adequate provisions nor put on sufficient force for breaking jams of such logs and for running and driving the same in said river; and whereas said logs so put in formed jams in said river and the navigation of said river was thereby obstructed, and whereas the said plaintiffs had a large quantity of logs in said river in the rear of said defendant's said logs, and whereas the said plaintiffs in order to float and run their said logs had to and did cause said jams so formed to be broken, and did run and drive said defendant's said logs a long distance, to wit, twenty miles, which said breaking of jams, running and driving said logs was well worth the sum of seven hundred dollars, and for which said sum said plaintiffs claim a lien upon said logs of said defendant under and by virtue of Act No. 221 Session Laws of 1863, whereby the said defendants became liable to the said plaintiffs under and by virtue of the provisions of an act of the Legislature of said State, entitled an act to provide for the floating of logs and timber in the streams of this state, "Approved March 16, 1861," and the amendments thereto, which said sums the said defendant, in consideration of the premises, afterwards faithfully promised and undertook to pay. Yet the said defendant, not regarding its said promise and undertaking, wholly neglected and refused and still doth neglect and refuse to pay said plaintiffs said sum of money or any part thereof to said plaintiff's damage one thousand dollars."

The declaration contained a second special count, and the common counts in assumpsit. The defendant pleaded the general issue and gave notice of a set off.

On the trial "the Court charged and directed the jury to bring in a verdict for the defendant, for the reason that the plaintiffs did not take and retain such possession of the property as would be sufficient to preserve their lien, and were not therefore entitled to maintain an action of assumpsit; that when the plaintiffs suffered the logs to go into the boom, and did not obtain the promise of the boom company to take charge of them for said plaintiffs, and in answer to their request, were notified by the boom company that they would not take charge of the logs for the plaintiffs, they thereby lost their possession of the same." To which charge the plaintiffs excepted. Under these instructions the jury found a verdict in favor of the defendant; and the judgment entered thereon is brought into this Court by writ of error.

Judgment of the Circuit Court reversed with costs, and a new trial awarded.

Marston & Hatch, for plaintiffs in error.

The remedy given by the act of 1861 (pp. 557-8) was clearly one against the property; the constable could, by virtue of his execution, only levy on the particular logs run, and the person claiming the lien was required to hold possession of them. The owner was not personally liable. The Legislature not considering the remedy here given sufficient, in 1863, (Laws 1863, p. 374), amended the act of 1861 by substantially re-enacting the first section, making, however, the owner of the logs so run personally liable for the cost and expense of running the same.

The act in question is remedial: passed not only to give a remedy, but to supply defects in the act of 1861. It being remedial, then, everything is to be done in advancement of the remedy that can be given consistently, with any construction that can be put on it.--Sedgwick on Stat., and Const. Law, 360.

The person running or driving logs had a complete and perfect remedy against the property under the act of 1861. If the act of 1861 gave a complete remedy against the property, and the act of 1863 does not give an additional or different remedy, then, for what purpose did the Legisture attempt to amend the act of 1861? No rule is better settled than in construing a statute, effect must be given to every part of it; one part must not be so construed as to render another part nugatory, or of no effect.--People v. Burns, 5 Mich. 115.

The question is for the first time presented to this Court, and must be disposed of upon principle. The statute imposes upon the defendant a moral obligation to pay the claim by declaring it to be personally liable, and in the language of Lord Abinger, "the action may be sustained on the ground of morality and justice. The maxim of the English law is, amplify its remedies, and, without usurping jurisdiction, to apply its rules to the advancement of substantial justice." Accordingly, the principle upon which courts of law act is to administer justice to a party who can make that justice appear by enlarging the legal remedy, if necessary, in order to attain the justice of the case.--Broom's Legal Maxims, 77.

The action of assumpsit in an equitable remedy, and is most favorable to the defendant. To compel plaintiffs to retain their lien, would require additional services on the part of the plaintiffs, increase the cost and expenses to defendant, and prevent the defendant from taking possession of, and manufacturing the logs; it would be very inconvenient, and an argument drawn from inconvenience is forcible in law. Such a construction should not be put upon the statute, unless it is capable of receiving no other.

Green & Scofield, for defendant in error.

On the trial in the Circuit Court no claim or offer of proof was made, except under the first count of the declaration, and the statement made, and which was taken as the evidence in the case for the purposes of the trial, did not assume any express promise of payment by the defendant.

1. If the plaintiffs were entitled to a lien upon the logs, they lost it by their failure to retain possession of them. 3 Pars. on Cont., 243, 4; Jordon v. James, 5 Hammond, 88, 98; 3 East, 235; Nevan v. Roup, 8 Clarke (Iowa), 207; Crouston v. Phil. Ins. Co., 5 Binney 538; Holley v. Huggeford, 8 Pick. 73; Bailey v. Quinte, 22 Vt. 474.

2. The statute creates a liability of the owner for the cost and expense of breaking of jams, &c., and provides a remedy, and to that remedy the plaintiffs are confined.-- Renwick v. Morris, 7 Hill 575; Stafford v. Ingersoll, 3 Hill 38; Almy v. Harris, 5 Johns. 175; Edwards v. Davis, 16 Johns. 281.

The plaintiffs may have a remedy at common law, if the stream was unlawfully obstructed, by an action on the case, but not in assumpsit. The creation of a liability by the first section, if there was no provision for enforcing it, would not give the remedy by assumpsit, but only in case. The action of assumpsit is given by the third section, for establishing and enforcing the lien provided for, and when the lien does not exist the party can have no remedy under this statute. The obligation created by the statute can only be enforced in the way provided by the statute, that is to say, by securing the lien upon the logs and retaining it by holding the possession and prosecuting an action of assumpsit to establish and enforce it.

Christiancy, J. Graves, J., Cooley, J. concurred. Campbell, Ch. J. dissenting.

OPINION

Christiancy, J.

The only question in this case is whether, under the act of March 20, 1863, (Sess. Laws, p. 374), a plaintiff, who, in floating his logs in a navigable stream, has, for the purpose of clearing the stream from obstructions by jams of defendant's logs, caused such jam to be broken and the defendant's logs to be run under the circumstances authorized by the first section of that act, can, without reference to the lien given by that section, sustain an action of assumpsit against such owner personally for the cost and expense of breaking such jams and running the logs; or, whether the remedy given by the act is intended to be confined exclusively to the enforcement of the lien provided by that act in the nature of a proceeding in rem.

The first section provides that such logs may, under the circumstances there specified, be run, the jams broken, and the banks cleared, "at the cost and expense of the person owning such logs, etc., and such owner shall be liable to such person for such cost and expense."

If the act had stopped here, an action of assumpsit in our opinion, might be sustained against the owner personally, for such costs and expenses, just as clearly and upon substantially the same principles, as if the plaintiff had done the same work and incurred the same expense "at the special instance and request" of the defendant. Had the work been done and the expenses incurred at the request of the defendant, it would only have created the liability to pay. That liability would, upon the principles of pleading in the action of assumpsit, have been alleged as the foundation of the promise to pay. The statute creates the same liability for the same labor and expense under the specified circumstances. This liability, in both cases alike creates the legal duty of the defendant to pay. And this duty the law enforces in an action of assumpsit. under the name or theory of a promise to pay; adopting the conclusive presumption that every man promises...