Edson v. Gates

• Decision Date: 06 October 1880
• Citation: 6 N.W. 645,44 Mich. 253
• Court: Michigan Supreme Court
• Parties: EDSON v. GATES.

6 N.W. 645

44 Mich. 253

EDSON v. GATES.

Supreme Court of Michigan

October 6, 1880

Certain agreement for the carrying on of certain lumbering operations, sale of logs, and the furnishing of certain supplies, considered and construed. Finding of the referee that party should not be chargeable for the expense of the driving logs of third person mingled with the general drive for the expense of which he was liable, held proper. The fact that parties are equally and jointly interested in a certain transaction does not make them partners.

Error to Bay.

Wheeler & McKnight and Hatch & Cooley, for plaintiffs.

Holmes Collins & Stoddard and Benton & Hanchett, for defendants.

MARSTON, C.J.

The question raised in this case must be determined principally on a construction of the written agreements, in the light of what preceded and what was done under them. The referee found that in the summer of 1876 the assignees of the plaintiffs Amos and Gilbert Johnson, were copartners under the firm name of Johnson Bros.; that defendants were partners under the firm name of Gates & Fay; that in the summer of 1876 these two firms agreed to purchase a certain lot of pine lands then owned by Evans, Kilmaster & Co., and that Gates & Fay should negotiate such purchase; that, in the event of such purchase being made, Johnson Bros. and Gates & Fay should jointly cut and lumber the pine thereon, and should be joint owners of the logs; that Gates & Fay should advance the money necessary to make the payments on the lands, and to cut, run, and drive the logs to a place of manufacture or market; that Johnson should advance certain materials and supplies to aid in the cutting; that the sum of $318.03, owing by Gates & Fay to Amos Johnson, should be transferred to the joint account of both firms and to the credit of the Johnsons. Each firm was to furnish certain teams, and the Johnsons were to personally attend to the lumbering, and their services should offset the use of the means furnished by Gates & Fay in excess of the amount furnished by the Johnsons; and that Gates and Fay should be reimbursed for the principal of such excess out of the proceeds of the business.

Gates &amp Fay did negotiate a purchase, and took the contract in their firm name, and Johnson Bros. did not know that their names were not in the contract until April, 1877, but until then were of the belief that they were parties thereto, and made expenditures and performed labor upon the lands in that belief. The consideration set forth in the contract for the lands was $8,500. The first payment was $2,125, for which Gates & Fay gave their notes at two and four months, which were paid. The balance was to be paid in one, two, and three years from the date of the contract, July 31, 1876, with interest at 7 per cent. on all sums unpaid. The vendees were restricted in the cutting of the timber to not exceeding one-third in any one year, but might cut more on making a proportionate part of the next payment, equal to the timber cut. The contract provided how the logs should be marked, and the vendors were to have a lien thereon for payments not made when due. In the fall of 1876 Johnson Bros. commenced lumbering upon these lands. A large quantity of logs were cut, marked, and banked, and in April, 1877, Johnson Bros. commenced the work of running and driving these logs. All this was done with the full knowledge and consent of Gates & Fay, in pursuance of the oral agreement first referred to, each furnishing teams, etc., as agreed. The amount paid for such purposes need not be referred to in this statement. There were more logs thus cut than the parties had a right to under the contract with Evans, Kilmaster & Co., without making further payment, but the excess thus cut does not seem to have been accurately known until the summer or fall of 1877. There were also other logs, which the Johnsons had purchased on joint account of themselves and Gates & Fay, banked with these, also marked J.G.F., the same as were those cut upon the joint lands.

On the fifth of April, 1877, Johnson Bros., by a written agreement sold to Gates & Fay, and agreed to deliver in the main stream of the Chippewa river, "their undivided one-half interest in all the logs put in by them in said stream and its tributaries marked J.G.F., supposed to be 3,500,000 feet, more or less, according to the scale made by Ira Elliott on the bank of the said stream, said scale to be basis of settlement of this contract." The terms of payment were $1,000 "June 1, 1877; $2,500 September 1, 1877; provided that these two amounts shall not exceed the investment made by the said Johnsons in the joint purchase, to them at this time unknown; the balance December 1, 1877." It was also provided that, if the boom scale showed a shortage of a certain quantity from Elliott's, then a different price, per thousand, was to be paid for the logs. The payments of $1,000 and $2,500 were made. On November 19, 1877, Gates & Fay agreed to pay Evans, Kilmaster & Co. $2,000 on account of the excess of logs cut. In March, 1878, they...