Ferguson v. Arthur

• Decision Date: 01 October 1901
• Citation: 128 Mich. 297,87 N.W. 259
• Court: Michigan Supreme Court
• Parties: FERGUSON v. ARTHUR.

87 N.W. 259

128 Mich. 297

FERGUSON v. ARTHUR.

Supreme Court of Michigan

October 1, 1901

Error to circuit court, Ogemaw county; Nelson Sharpe, Judge.

Replevin by James Ferguson against Amelia Arthur. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Plaintiff and defendant entered into the following contract: 'This contract, made this 26th day of July, 1897, between Amelia Arthur, party of the first part, and James Ferguson, party of the second part, witnesseth as follows, to wit: The party of the first part agrees to sell to the party of the second part all the hemlock timber standing and down on the east half of the northeast quarter of section eight, town twenty-one range one east. The party of the second part agrees to pay the party of the first part fifty cents per one thousand feet when the party of the second part received remittances and scale bills from the party he sells to.' During the winter following, plaintiff entered upon the lands, and cut and removed 90,000 feet of timber. Defendant, claiming that plaintiff had not complied with the contract in removing the balance of the timber, afterwards entered into possession and cut the logs in controversy, which the plaintiff replevied. Upon the trial he recovered verdict and judgment.

Merrie H. Abbott and Charles S. Abbot, for appellant.

Ross &amp Harris, for appellee.

GRANT J. (after stating the facts).

1. The contract, being silent as to time, provided for a reasonable time for performance on the part of the plaintiff. It was therefore incompetent for defendant to show that any specific time was agreed upon. This would be in violation of the terms of the contract. Stange v. Wilson, 17 Mich. 342. The ruling of the court in this regard was correct.

2. The court instructed the jury, in substance, that by the terms of the contract the title to the timber had passed from the defendant to the plaintiff, and that, if plaintiff had failed to remove it within a reasonable time, he could not recover but, if he had not had reasonable time in which to remove it, he was entitled to recover. We think the court correct in holding that the title to the timber had passed. See Whitcomb v. Whitney, 24 Mich. 486. Upon the execution of the contract all the delivery which was possible was made. The plaintiff entered upon the land, and took all the possession possible to take. The defendant had nothing more to do. The price was...