Kieldsen v. Wilson

• Decision Date: 18 October 1889
• Citation: 77 Mich. 45,43 N.W. 1054
• Court: Michigan Supreme Court
• Parties: KIELDSEN v. WILSON.

43 N.W. 1054

77 Mich. 45

KIELDSEN v. WILSON.

Supreme Court of Michigan

October 18, 1889

Laws Mich. 1887, Act 229, is entitled "An act establishing a lien for labor and services upon lumber *** and all other forest products;" and provides that any person or persons who shall perform any labor or services in manufacturing lumber, or in cutting, skidding, etc., any logs or other forest products, shall have a lien thereon for the amount due for such labor, and the same shall take precedence of all other liens, etc.

SHERWOOD C.J.

This suit is brought by the plaintiff against defendant to establish and enforce his lien against a quantity of pine and hemlock logs under Act 229, Laws 1887. On the 11th day of April, 1888, plaintiff filed his statement of lien, and on the 14th of April commenced his suit by writ of attachment to enforce the same. The declaration, which is in the usual form in such cases, was duly filed after personal service of the writ, and defendant appeared and pleaded issuably in the case. The cause was tried before Judge ALDRICH, in the Missaukee circuit, with a jury, and the plaintiff obtained judgment for the sum of $359.52, and defendant brings error. The record is large, and contains all the evidence in the case. Fifty-four errors are assigned upon the record.

The plaintiff's claim is that on the 20th of January, 1888 he made a contract with defendant to haul certain logs on what was known as the "Kenneth Campbell's Job," for $2.50 per thousand for pine, and $2 per thousand for hemlock; that at this time Campbell had hauled a considerable amount of logs, and defendant agreed to pay plaintiff for hauling those logs if plaintiff would pay Campbell's men who had done the work what was then due them; that it is conceded that plaintiff paid the men, and that defendant paid plaintiff for such hauling done by Campbell. Plaintiff claims that a subsequent agreement was made by which defendant was also to pay him for hauling what were known as the "Ducy Trespass Logs" at the rate of $4.50 per thousand feet. Plaintiff further claims, as is conceded, that there were 1,241,143 feet of pine logs, and 247,215 feet of the hemlock and he further claims there were 31,114 feet of the Ducy trespass logs; that the hauling of the pine and hemlock logs amounts to $3,597.29; and he concedes that he has been paid $3,300, leaving a balance due plaintiff of $297.29, and a sum amounting to $62.23 owing for hauling the Ducy logs, making the entire sum due plaintiff $359.52 on account of the above-mentioned logs; that the question of lien in the case is of but little consequence, defendant being not only the debtor but owner of the logs; that it is not material whether the plaintiff should have a lien for the logs put in or not that have been paid for, the jury having found for plaintiff upon his theory of the case that he was to pay the men who worked for Campbell in hauling logs, and defendant was to pay him for the logs so hauled. It is further claimed by plaintiff that the jury, in finding a verdict for the plaintiff, sustained his theory upon all the material points, and the main questions are therefore closed by the finding. Plaintiff further contends that not all the timber he hauled was scaled and reported, and that the amount omitted entitled him to have from the defendant $181.50 more under his contract, which would make his total claim against defendant, at the time of bringing suit, $541.02.

The contention of the defendant is that a contract was entered into between defendant and Campbell prior to the alleged contract with plaintiff, and by which Campbell agreed to cut skid, haul, and bank the timber in question at the agreed price of $3.50 for the hemlock, and $4.50 for the pine; that Campbell, during the summer and fall of 1887, cut and skidded all of said timber, and that the some was ready to be hauled and banked during the ensuing winter; and that under said contract it was agreed that Campbell should have from the defendant $2 per thousand for the pine, and $1.50 per thousand for the hemlock, as fast as the timber was cut and ready to be hauled, and that estimates of the amounts so cut and skidded were made at various times, and that payments were made to Campbell accordingly. Defendant further denies that any contract was ever made by him with plaintiff or his agent to haul the timber, but that plaintiff became involved with Campbell by furnishing him supplies, and that to save himself from loss induced Campbell, by false representations, to deliver over the job as it then stood to him, said plaintiff; that no contract relations whatever ever existed between plaintiff and defendant other than those which existed by reason of the plaintiff becoming successor to Campbell in the contract between him and the defendant; that the defendant never revoked his contract with Campbell, or authorized the plaintiff to take possession of the work under the same. Defendant further contends that the amount which was due for cutting, skidding, and hauling the timber referred to upon the completion of the contract was $6,450.39, and that defendant had paid to Campbell, or to his order thereon, $6,700; that the scaler's bill for marking upon the timber was $217.55, one-half of which was to be paid by Campbell, making the total amount paid to him upon the job $6,808.77, being an overpayment of $358.36, which defe...