Gibbons v. Robinson

• Citation: 29 N.W. 533,63 Mich. 146
• Court: Michigan Supreme Court
• Decision Date: 14 October 1886
• Parties: GIBBONS, Surviving Partner, etc., v. ROBINSON and another.

29 N.W. 533

63 Mich. 146

GIBBONS, Surviving Partner, etc., v. ROBINSON and another.

Supreme Court of Michigan

October 14, 1886

Error to superior court of Detroit.

Atkinson & Atkinson, (Alfred Russell, of counsel,) for plaintiff and appellant.

Moore &amp Canfield, for defendants.

CHAMPLIN, J.

On the third day of August, 1880, John McKay entered into a written contract with defendants, who were copartners, as follows:

"Memorandum of agreement between John McKay, of Cheboygan, Michigan party of the first part, and E. Robinson & Co., of Detroit party of the second part, to-wit:

"Party of first part, for and in consideration of the agreements of the party of the second part hereinafter expressed, does hereby covenant and agree to sell and deliver to the party of second part, on rail of vessel, at such points at the head of Lake Huron as the party of first part may hereinafter designate, ten to twelve hundred cords of sound cedar posts, from four to twelve inches in diameter; said posts to be delivered as follows: First cargo on or before the twenty-fifth of August, 1880, and the second on or before the fifteenth of September, 1880, and the balance on or before October 15, 1880. Party of first part is to give party of second part ten days' notice in advance of time he will be ready to deliver each load. Party of first part is to peel as much of the above as possible. And party of second part, for and in consideration of the covenants and agreements of party of first part hereinbefore expressed, does hereby covenant and agree to pay to party of first part the sum of five and 62-100 ($5.62) dollars per cord of 128 cubic ft. for all of the peeled timber, and four and 12-100 ($4.12) dollars per cord of 128 cubic feet for the unpeeled, delivered as above, cash upon the delivery of each cargo.

"Detroit, August 3, 1880. JOHN MCKAY.

"E. ROBINSON & CO."

On the same day, McKay, by a writing under seal, assigned said contract, and all his rights thereunder, to Robert F. Johnston and Robert Gibbons, composing the partnership firm of Johnston & Gibbons, of which the defendants had notice. McKay got out cedar posts upon one of the Schneaux islands at the head of Lake Huron, and defendants sent a vessel there, of which one Rose was captain, with an order upon McKay for a cargo of cedar posts, which the captain delivered to McKay. In compliance with this order McKay put on board of the vessel, as he clains, 250 cords of cedar posts, about 50 cords of which were peeled. He also put on board a quantity of hop poles. It appears that defendant Farwell was the owner of the vessel. The lading of the vessel was completed on Sunday, and on the afternoon of that day she was towed to Duncan bay, off Cheboygan. The next day, at the request of Capt. Rose, McKay filled out and delivered to him a bill of lading, as follows:

"CHEBOYGAN, MICH., September 4, 188__.

"Shipped in good order and well conditioned, by John McKay, as agent, for account and at the risk of whom it may concern, on board the barge Southampton, whereof H. Rose is master, bound for Detroit, Mich., the following articles, as herein marked and described, to be delivered in like good order and condition, as addressed in the margin, or to his or their assigns or consignees, upon paying the freight and charges as noted below, (the dangers of navigation excepted.)

"In witness whereof, the master or clerk of said vessel hath affirmed to bills of lading all of this tenor and date, one of which being accomplished the others to stand void.

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MARKS. NO. WEIGHT. LAKE FREIGHT.

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Johnston & Gibbons, 250 cords cedar More or $3.00 per cord on

Detroit, Mich. posts. less. posts.

7,000 hop poles.

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[Signed] "CAPT. H. ROSE."

The circumstances under which the bill of lading was given, is narrated by the witness McKay as follows: "Question. State what took place between you and Captain Rose in relation to the bill of lading. Answer. In Cheboygan, on Monday, while the barge was lying at anchor in the bay, Captain Rose asked me to make out a bill of lading. I told him I had never made out one, and did not know why he wanted any. Asked him why he wanted a bill of lading. He told me that he wanted it for the purpose of fixing the freight; that Farwell owned the barge, and that the posts belonged to Farwell & Robinson; that is, to the company. I told him I had nothing to do with the freight, and he explained that he wanted to fix the freight at $3. He went in and got a blank bill of lading, and, at his direction, I made it out just exactly as he told me to. I never had made out one before, and never have since. I made it out just as he told me to. If he had said $4 a cord for freight, I would have put it in." He further testified that he considered he had nothing more to do with the posts; that he had made a delivery to Farwell & Robinson on the rail of the vessel according to the contract at Strachies island, and had never claimed to own them since, or made any claim to them.

It appears that McKay proceeded immediately to Detroit, and delivered his duplicate of the bill of lading to Johnston & Gibbons, who showed the same to defendants, and requested an advance upon it of three or four hundred dollars, and was told by Mr. Farwell to come around the next morning. It also appears that the cargo of cedar posts were seized at Port Huron while in transit under a writ of replevin sued out by one Smith, claiming to own the timber from which they were cut. The record does not disclose what became of this suit. It shows, however, that the posts reached Detroit, and were landed near the foot of Twelfth street, where they were measured, and found to contain 45 cords of peeled cedar posts, and 205 cords of unpeeled. There is no testimony of any delivery made or tendered to defendant after the arrival of the cargo in Detroit.

This suit is brought by Robert Gibbons, as the surviving partner of Johnston & Gibbons, against the defendants, to recover the value of the cedar posts above mentioned. The declaration is upon the common counts in assumpsit, and is based upon a sale and delivery under the contract above set forth, and assignment to plaintiff's firm. Under this declaration it was necessary for the plaintiff to prove a sale and delivery of the cedar posts to the defendant. Irrespective of the bill of lading, there was evidence which was undisputed that tended to prove a delivery of the posts over the rail of the vessel in accordance with the contract. Nothing is said in that instrument about inspection or measurement before delivery, and no question is made in the record that the posts put on board the vessel were not of the kind called for by the contract. The only obstacle in the way of a recovery by plaintiff arises from the fact that the bill of lading consigns the cedar posts to Johnston &...