Hoffman v. Loud

• Citation: 69 N.W. 231,111 Mich. 156
• Court: Supreme Court of Michigan
• Decision Date: 09 December 1896
• Parties: HOFFMAN v. LOUD.

69 N.W. 231

111 Mich. 156

HOFFMAN v. LOUD.

Supreme Court of Michigan

December 9, 1896

Error to circuit court, Iosco county; William H. Simpson, Judge.

Trover by John M. Hoffman against Henry N. Loud for conversion of timber. Judgment for defendant, and plaintiff brings error. Reversed.

Phillips & Jenks, for appellant.

M. J Connine, for appellee.

MONTGOMERY J.

This is an action of trover, for the conversion of timber claimed to have been taken from lands owned by the plaintiff and delivered to the defendant, by whom it was converted. The defense was the statute of limitations, and the question involved was whether any of the timber taken from the lands was delivered to defendant within six years prior to the commencement of the suit, and, if so, how much. All the questions sought to be raised are precluded by the special finding of the jury, unless there was error in the instructions bearing upon the burden of proof. The plaintiff excepts to a portion of the charge, alleging that it placed upon him a greater burden than the rules of evidence require. To understand clearly the purport of the charge, it is necessary to quote at some length. The court charged as follows: "It is a legal right that the defendant in this case, Mr. Henry N. Loud, has a right to insist, that, if he pays any damages in this case, the jury shall find that it has been proven to you, by a preponderance of evidence, that the suit was brought within six years from the time the cause of action accrued; just as essential that it should be proven to you by a preponderance of all the evidence in the case as it is that he should prove the value of the timber, or anything else. Now, gentlemen of the jury, whether this action was brought within this time is a question of fact. There has been a number of witnesses on the stand that have sworn that that timber was standing on such a date, and there is one that swore it was not. Some have sworn it was cut and hauled on such a date, and others have sworn it was not; and some have sworn there was so much standing, and so much on skids, and others have sworn there was not. There seems to be a good deal of dispute on that question. It is a disputed question of fact, that the court has nothing to do with; and it has got to be left entirely to you, and it is your duty to agree upon it. Find, if you can, what is right; and, if you cannot find at all, then, of course, your verdict has got to be, 'No cause of action,' because the man that brings the suit must satisfy you. The man that sues in a court of law, and asks the jury to render a verdict for him, must satisfy the jury that they are able to say that it is so. As I have stated to you before, we are not here to guess at anything. We have nobody's interests at heart nobody's rights that we sympathize with. We are not supposed to care for either one or the other, but we are here to say just what is right between the parties, and insist that the one that makes the claim shall prove his claim; and consequently it is your duty in this case to insist that this plaintiff prove by a preponderance of evidence; that is evidence that, after you have heard it, you are satisfied does not leave your minds unbalanced, so that you don't know. I say, it is your duty to be satisfied, by proof and evidence that satisfies you, that the conversion of this property was within six years previous to the 8th day of February, 1892. If he has not done it, if there is not a clear preponderance of evidence that satisfies you to that effect, if there is not that weight of evidence that preponderates in favor of it, gentlemen of the jury, the case is ended, and it is your duty to say, 'No cause of action.' *** This is not a case of...