Gamble v. Gates

• Citation: 52 N.W. 941,92 Mich. 510
• Court: Supreme Court of Michigan
• Decision Date: 28 July 1892
• Parties: GAMBLE v. GATES.

52 N.W. 941

92 Mich. 510

GAMBLE v. GATES.

Supreme Court of Michigan

July 28, 1892

Error to circuit court, Bay county; GEORGE P. COBB, Judge.

Replevin by George T. Gamble against Samuel G. M. Gates for timber. Judgment for defendant. Plaintiff brings error. Reversed.

James H. Davitt, (T. E Tarsney, of counsel,) for appellant.

Chester L. Collins, (A. P. Lyons, of counsel,) for appellee.

LONG J.

December 26, 1885, Henry Gamble was the owner of certain lands in Bay county, and on that day he entered into a written contract with defendant. The contract contained the following stipulations: "That the said party of the first part upon the fulfillment by said second party of the conditions hereinafter mentioned, hereby agrees to sell, assign transfer, and set over unto the said party of the second part all the white pine and Norway timber standing, lying, or being upon the following described pieces or parcels of land." The contract then sets out the descriptions of land, and continues: "Said party of the second part hereby agrees to purchase of said first party the white pine and Norway timber upon the above-mentioned lands as aforesaid, and to pay therefor the sum of $2,000 in the manner following, to wit: Said second party shall make and execute to said first party his promissory notes to the amount of $2,000, with interest at 7 per cent.; one note payable three months from date for $500, one note payable five months from date for $500, and one note payable one year from date for $1,000. It is also mutually understood and agreed that the said second party may forthwith enter upon said lands, and cut and remove said timber within the space of three years from the date hereof, and, if more time is required, second party is allowed two years more by paying all the taxes levied or assessed on said land during the additional time required. And whatsoever of said timber shall remain upon said lands after the limit of the aforesaid five years shall revert and become the property of said first party. It is also mutually understood and agreed that the title to said timber shall be and remain in said first party until all the conditions and agreements contained in this contract shall have been fulfilled, and the notes mentioned herein, with interest thereon, be fully paid." In the winter of 1886-87 defendant commenced lumbering these lands, letting a contract to one Maloney, who did but little work under it. In December, 1888, defendant let the contract to Morris & McDougall. By the terms of this contract they were to take off all the timber, both pine and hardwood. After this contract was made, the defendant, in looking over his contract with Henry Gamble, discovered that it did not include the hardwood timber. He sent word to Mr. Gamble in reference to the matter, who sent his son, George, to Bay City, to see the defendant, where the following agreement was entered into between them: "Bay City, Mich., Feb. 2 1889. I am to account to Henry Gamble for hardwood now being cut by Morris & McDougall from lands in 17, 4 E., as follows: Ash, at $1.50 per M. feet; maple, at $1 per M. feet; elm, at $1.25 per M. feet, or more if I can get it out of the elm. S. G. M. GATES. Accepted, Bay City, Feb. 2, 1889. HENRY GAMBLE. Per G. T. GAMBLE." Morris & McDougall took off a portion of the timber, and quit work. September 17, 1890, defendan...