H.M. Tyler Lumber Co. v. Charlton

• Decision Date: 01 October 1901
• Citation: 87 N.W. 268,128 Mich. 299
• Court: Michigan Supreme Court
• Parties: H. M. TYLER LUMBER CO. v. CHARLTON et al.

87 N.W. 268

128 Mich. 299

H. M. TYLER LUMBER CO. v. CHARLTON et al.

Supreme Court of Michigan

October 1, 1901

Error to circuit court, Cheboygan county; Frank Shepherd, Judge.

Action by H. M. Tyler Lumber Company against John Charlton and others. From a judgment in favor of plaintiff, defendants bring error. Reversed.

Alex. J. Groesbeck (Watts S. Humphrey, of counsel), for appellants.

C. S Reilley (Frost & Sprague, of counsel), for appellee.

MOORE J.

This is an action of replevin. There is almost no dispute about the facts. The firm of J. & T. Charlton were the owners of logs which were manufactured into lumber by the Cheboygan Lumber Company in the city of Cheboygan in the spring of 1899. This lumber was piled on the docks of the Cheboygan Lumber Company. It was known as 'Lots 6 and 7 O. K. stock.' Lot 6 was piled in its own piles, separate from lot 7, and separate from all other lumber; and so lot 7 was piled separate from lot 6, and separate from all other lumber. There were scattered among these piles other piles of lumber but no other lumber was ever put in a pile of lot 6 or lot 7. The lumber was all marked. Lot 6 was plainly and distinctly marked 'Lot 6 O. K.,' and in addition the initials of its manufacturers, 'J. & T. C.' Lot 7 was similarly marked. These marks were placed on the lumber at the time of the piling. They were put on with lampblack. The sawing of lot 6 was finished on May 22d; of lot 7 on June 12, 1899. Mr Rogers had charge of the lumber for the Charltons. On July 17, 1899, Mr. Thomas Charlton handed the plaintiffs the following proposition: 'North Tonawanda, July 17, 1899. The H. M. Tyler Lumber Company, North Tonawanda, N Y.--Gentlemen: We agree to sell you the lumber now piled on docks of Cheboygan Lumber Company at Cheboygan, Mich., known as 'Lots 6 and 7 of the O. K. stock,' containing, according to estimate, about 2,250 M. Price to be $15.00 per M. for merchantable, and $9.50 per M. for mill culls. Shipments to be made as follows: Lot 6 to be shipped by July 25th, and lot 7 by August 20th. Settlements to date from these dates in case the lumber is not moved. Lumber is to be inspected by J. W. Ritchie, of Bay City, Mich. Terms 1 1/2 off for cash or ninety days' paper. Yours, truly, J. & T. Charlton, per W. T. Charlton.' The offer was accepted as follows: 'We hereby accept the above offer. H. M. Tyler Lumber Co., by H. M. Tyler, Vice President.' After this agreement was entered into, an officer of the plaintiff came to Cheboygan, and examined and counted the piles of lumber, and checked it off on their memoranda. He did not place any one in charge of the lumber, nor did he notify the dock owners of any change in the ownership, nor did the plaintiff place any insurance upon the lumber. Mr. Rogers continued in charge of the lumber as before. A large amount of insurance had been placed upon the lumber by the Charltons, the last of it about the middle of June. This insurance was not changed after the correspondence, but continued as before. On or about August 15, 1899, the plaintiff procured in the neighborhood of 500,000 feet of this lumber to be shipped, for which an invoice was sent to plaintiff. On August 25, 1899, the plaintiff gave its check to the defendants Charlton for $7,958.71 in payment of the same. Each party paid one-half the inspection bill. The plaintiff did not move the lumber within the time mentioned in the correspondence. Its claim is that it could not get the boats to do so. It is the claim of the defendants that, had plaintiff been willing to pay current rates of freight, it would have had no difficulty in getting boats. The dock owners desired the room on the dock occupied by the lumber, and so notified Mr. Rogers, who notified the Charltons. The defendants urged plaintiff to move the lumber. It not having done so, the defendant sent them the following letter: 'North Tonawanda, N. Y., Sept. 12, 1899. The H. M. Tyler Lumber Company, North Tonawanda, N. Y.--Gentlemen: You will please take notice that you are hereby required to carry out on your part the terms of the contract entered into between your company and ourselves, dated July 17th, 1899, for the purchase by you of the lumber then piled on the docks of the Cheboygan Lumber Co., of Cheboygan, Michigan, before the 19th day of September, 1899. In case you do not have the lumber mentioned in said contract removed from those docks by that time, we shall consider forfeited whatever claim you might otherwise have to the lumber mentioned in said contract and not already removed. It is unnecessary for us to inform you that this lumber had already remained on the docks much longer than has been reasonably required to remove the same, and that the continued storage of it is causing us large expenses. Respectfully yours, J. & T. Charlton.' The plaintiff made no reply to this communication. On September 22d plaintiff had a tow at Cheboygan to take the lumber, but the defendants refused to deliver it. At that time Mr. Ritchie, the inspector acting for plaintiff, made a demand upon Mr. Rogers, agent for the Charltons, for the lumber. He refused to accede to the demand. When the demand was made, no money or notes were tendered, and Mr. Ritchie had no money or notes to pay for the lumber if it had been delivered to him. The captain of the tow then telegraphed the plaintiff that the defendants refused to deliver the lumber. On receipt of this telegram, Mr. H. M. Tyler and his brother called on Mr. Thomas Charlton, and demanded the lumber. He said his brother was absent, and refused to accede to the demand. He said, however, if the plaintiff would pay one dollar a thousand more for the lumber, he would take the responsibility of letting it go. Mr. Tyler then delivered to Mr. Charlton the following letter: 'A. M., September 22nd, 1899. Messrs. J. & T. Charlton, North Tonawanda, N. Y.--Gentlemen: We have just received a message from Captain Little of the green tow, which says that he arrived at Cheboygan last night, and that your man refused to let him take away the lumber. We also have a telegram from the inspector, Mr. J. W. Ritchie, to the same effect; and this is to notify you that, in case we are unable to remove this lumber in consequence of such refusal, and there is any demurrage caused by delaying the tow there, we shall hold you responsible for it, and for all the damage we may sustain in consequence of your refusal to permit us to take this lumber. We have done our best to get a tow there, and finally got one by paying 50 cents per M. above the market rate, and they would have been there on the 19th had not Providence interfered with a terrible gale on Lake Huron, which held them a long time at Port Huron. If you need a settlement for any part of this lumber, we are and have been ready to make settlement at any time requested. Hoping that we may obtain this lumber at once, and save trouble and unpleasantness, which might otherwise occur, we remain, yours, very truly, H. M. Tyler Lumber Co., by John S. Tyler, Treas. Dic. J. S. T.' No money or notes were tendered at this time unless what is said in the letter is regarded as a tender. It was the custom at Cheboygan for the manufacturer of the lumber to deliver the lumber on the rail of the vessel, and the expense of doing this was included in the price paid for manufacturing the lumber. Both parties knew of this custom. After the refusal of the defendants to deliver the lumber, the plaintiff commenced this suit in replevin. Defendants gave the statutory bond, and kept the lumber. Upon the trial it was the claim of plaintiff that two piles of the lumber were marked 'sold to the H. M. Tyler Lumber Co.,' and that Mr. Rogers admitted to the sheriff he had so marked them. This was denied by Mr. Rogers, and it appeared that he had never been directed or authorized to so mark them. There is no claim that any change was otherwise made in the marks which were upon the lumber when the correspondence began. Upon the trial the plaintiff waived a return of the lumber. The court directed the jury that the title was in the plaintiff, and to assess its damages at the value of the lumber. The jury returned a verdict for upwards of $31,000. The case is brought here by writ of error.

All of the counsel are agreed that the principal question in the case is, did the title to the lumber pass to the plaintiff when it accepted the offer contained in the letter of July 17, 1899? The counsel for the plaintiff insists that under the repeated rulings of this court the title did pass, while the counsel for defendants urge just as strenuously that under the rulings of this court the title did not pass. The question involved has been before this court a great many times. The trouble is not so much with the rule of law as it is in the application of it to a given case. No two cases are alike, and what has been said by the court in a given case must be taken in connection with the facts of that case. If this is done, it will go far to reconcile any apparent inconsistencies in the decisions. Plaintiffs rely upon Whitcomb v. Whitney, 24 Mich. 490; Lingham v Egglestone, 27 Mich. 329; Jenkinson v. Monroe, 61 Mich. 461, 28 N.W. 663; Wagar v. Railroad Co., 79 Moch. 651, 41 N.W. 1113; People v. Sheehan, 118 Mich. 539, 77 N.W. 88; and other cases. The defendants rely upon Lingham v. Eggleston, 27 Mich. 324; Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 Mich. 223, 18 Am. Rep. 119; Byles v. Colier, 54 Mich. 1, 19 N.W. 565; Wagar v. Farrin, 71 Mich. 371, 38 N.W. 865; Blodgett v. Hovey, 91 Mich. 572, 52 N.W. 149; Slade v. Lee, 94 Mich. 128, 53 N.W. 929. Lingham v. Eggleston, supra, has, ever since the opinion was written by Justice Cooley, been regarded as a leading case. In that case, among other things, it is said: 'In...