Hubbardston Lumber Co. v. Bates

• Decision Date: 19 January 1875
• Citation: 31 Mich. 158
• Court: Michigan Supreme Court
• Parties: The Hubbardston Lumber Company v. Philo T. Bates and others

31 Mich. 158

The Hubbardston Lumber Company v. Philo T. Bates and others

Supreme Court of Michigan

January 19, 1875

Heard October 23, 1874 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Ionia Circuit.^[*]

This was an action brought in the Ionia circuit, by the defendants in error, under the name and style of Bates, Gould & Co., against the lumber company, to recover back the consideration paid on a purchase, or a contract for the purchase of logs, which the plaintiffs claimed to have rescinded on the ground that the logs had not been delivered afloat, according to the contract.

The case was tried before the court without a jury. The court made a special finding of facts and law, to which several exceptions were taken. The evidence is also set out in the bill, and exceptions are taken and errors assigned, that there was no evidence tending to prove certain of the facts stated in the finding.

The findings by the court, as amended after certain requests made by the defendant below, and as finally adopted by the court, are as follows:

"First, That the plaintiffs composed the firm of Bates, Gould & Co., doing business at Ionia, in said county, as manufacturers of lumber and shingles, on the 28th day of February, 1872, and for some time previous and up to the commencement and trial of this suit;

"Second, That the defendant is a corporation organized under an act of the legislature of the state of Michigan, entitled 'Of Mining and Manufacturing Companies,' approved February 5, 1853,--being chapter 63, Compiled Laws of 1857, and chapter 75 of Compiled Laws of 1871,--and doing business at the village of Hubbardston in said county:

"Third, That on the 28th day of February, 1872, the defendant sold to the plaintiffs 2,074 pine logs marked 'H, 3,' to be delivered afloat just above Vickery's shanties, in time for the spring freshet of 1872, the said logs scaling in quantity 595,-145 feet, and the price agreed upon was five dollars ($ 5.00) per thousand feet, amounting to the sum of two thousand nine hundred and seventy-five dollars and seventy-three cents ($ 2,975.73), and that at the time of said sale the said plaintiffs made full payment to said defendant in cash and notes." [The evidence shows that $ 1,250.00 of the amount was in cash, and the balance was the plaintiffs' note at four months; the finding proceeds:] "And received a memorandum of sale of which the following is a copy:

"'Hubbardston, February 28, '72.

"'Bates, Gould & Co.,

"'Bo't of Hubbardston Lumber Company 2,074 pine logs marked 'H, 3,' delivered afloat just above Vickery's shanties in time for the spring freshet of 1872, scaling 595,145 feet, at $ 5.00....$ 2,975.73.

"'Received payment by cash and note.

"'N. F. Rogers, Treas. H. L. Co.'

"At the time such sale was made, defendant gave the plaintiffs the scale book kept by the person who scaled the logs as they were banked on the creek, in which the number of the logs was entered, the marks on the logs, and the number of feet they scaled; and there was no question between the parties on the trial as to the identity, quality and quantity of the logs;

"Fourth, That at said date, and for a long time prior thereto, the said N. F. Rogers was the treasurer of said defendant, and an active managing director, and duly authorized to make said sale, and execute and deliver said memorandum and receive said payment;

"Fifth, That said logs at the time of said sale, were upon the banks of Fish creek, just above Vickery's shanties; and that it is worth twenty-five cents per thousand to break the rolls and put said logs afloat;

"Sixth, That there was a freshet in Fish creek in the spring of 1872, about the first of April, or rise of water, sufficient to float those logs, and room enough to hold them afloat," [This 6th finding originally ended here, but the court was requested to amend by adding "but the spring freshet of 1872 did not permit owners of logs on Fish creek and its branches, to run their logs to market; and that the logs in question could not have been floated down the creek if they had been rolled in the stream;" this the court refused, but added to the 6th finding the following words]: "There was not much testimony as touching this point; not enough to warrant the court in finding that the logs could, or could not, have been run out;

"Seventh, That the defendant did not break the rollways, nor deliver, nor put said logs afloat, prior to or in time for said freshet or rise of water; nor at any time in the year 1872; nor at any time in the year 1873, prior to the notice given by the plaintiffs, hereinafter mentioned. But," [this is added by amendment] "the testimony shows that they were all put afloat in August or September, 1873." [And here by further amendment is added]: "On the first day of July, 1872, plaintiffs renewed the note they gave defendant as part payment for the logs, for sixty days; that on September 2d, 1872, they paid defendant five hundred dollars on said note; that on Nov. 12th, 1872, they again paid defendant $ 500.00 on said note; and that on the 10th of June, 1873, plaintiffs wrote defendant a letter of which the following is a copy; which letter refers to the balance due on the note given in part payment for said logs:

"'Ionia, June 10, 1873.

"'N. F. Rogers:

"'Dear Sir--Yours of the 9th is at hand; we should like very much to pay you the balance on that note; but money matters are very close with us; we haven't got returns from a single car load of shingles yet, and having to pay our men has used all the means we could command. Mr. Gould or myself will be at your place the last of this week or first of next, and make some arrangement about the matter. The logs will undoubtedly be next year's stock, if they get here then.

"'Yours respectfully,

"'Bates, Gould & Co.

"'Per B."

[Thus far this amendment was made at the request of the defendant; but the court then adds further, of his own motion, the following]: "The testimony shows that said five-hundred-dollar payments were made by plaintiffs to the defendant, and said letter, written by plaintiffs to the defendant, upon the assurance by the defendant, through said Rogers, that the logs were all afloat, or nearly so; that the plaintiffs knew nothing to the contrary, and relied upon those assurances;

"Eighth, On or about the first day of July, 1873, the plaintiffs served upon the defendant a notice, of which the following is a copy, to wit:

"'Ionia, July 1, 1873.

"'Hubbardston Lumber Company:

"'Gentlemen:--On the 28th day of February, 1872, we purchased of you two thousand and seventy-four pine logs, marked "H. B.," to be delivered afloat just above Vickery's shanties, in time for the spring freshet of 1872, scaling five hundred and ninety-five thousand one hundred and forty-five feet, at five dollars per thousand feet, amounting to two thousand nine hundred and seventy-five dollars and seventy-three cents, which has been paid you by us by cash and note; said logs were not delivered by you according to your contract, and we are greatly damaged thereby; we shall not, therefore, now accept or receive said logs on the contract, and shall look to you for the money already paid you by us, and interest thereon, and the note of ours you now hold, and for our damages sustained by your failure to perform the contract according to its terms.

"'Yours, &c., Bates, Gould & Co.'

"Upon the facts in this case, as found above, it is held that the defendant should have delivered or put said logs afloat in Fish creek, just above Vickery's shanties, in time for the spring freshet or rise of water, about the first of April, 1872; and that the defendant, having failed of delivery, as hereinbefore set forth, is justly indebted to the plaintiffs in the sum of three thousand four hundred and fourteen dollars and three cents, being for the sum paid upon the purchase of said logs, and interest thereon from Feb. 28th, 1872, to date."

The court was requested as a matter of law to find from the facts proven, among other things, "that there is no proof which will warrant a judgment for the plaintiffs in the action;" also, that "plaintiffs cannot rescind the contract without consent of defendant, for, by the terms of the contract the title to the logs passed to the plaintiffs as they were on the bank of the creek. It was an executed agreement, and such an agreement cannot be rescinded by one party in the absence of fraud, and without the consent of the other. And if not an executed contract, it is not one that plaintiffs could rescind without consent of the defendant, and especially at the time notice of rescission was served in this case."

Judgment reversed, with costs, and a new trial awarded.

Clute & Smith, for plaintiff in error.

Marble & Webster, for defendants in error.

Christiancy, J. Graves, Ch. J., and Cooley, J., concurred. Campbell, J concur in the result.

OPINION

Christiancy J.:

Admitting for the present that the circuit judge was right in his findings, both of fact and law, upon every other point; that the title did not pass to plaintiff until the logs were delivered afloat in the stream, and that they would have had the right to rescind, had they done so with sufficient promptness, the main, the previous question, upon which the whole case must turn, is whether they had the right to rescind at the late day, and under the circumstances, when they attempted to exercise that right.

If the finding of the judge was correct, that "the testimony shows that said five-hundred-dollar payments" [of September 2d and November 12th, 1872] "were made by the plaintiffs to the defendants upon the assurance by the defendant, through Rogers, that the logs were all...