Litchfield v. Garratt

• Decision Date: 21 July 1862
• Citation: 10 Mich. 426
• Court: Michigan Supreme Court
• Parties: Elisha C. Litchfield v. Coe Garratt and another

10 Mich. 426

Elisha C. Litchfield v. Coe Garratt and another

Supreme Court of Michigan

July 21, 1862

Heard July 6, 1861

Error to Wayne Circuit, where Coe Garratt and William H. Nelson suing for the use and benefit of Thomas D. Dewey and John Stewart, recovered judgment against the plaintiff in error in an action of assumpsit. The case is sufficiently stated in the opinion.

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

Walker & Russell, for plaintiff in error.

Goulds & Hanchett and G. V. N. Lothrop, for defendants in error, argued that Litchfield, by the agreement made with Dewey & Stewart, on the faith of which they had acted, was estopped from claiming damages as against the claim in this suit: 21 Wend. 94; 3 Hill 221; 14 S. & R., 304; 17 Conn. 355; 1 Greenl. Ev., § 207; 21 Wend. 172; 4 Barb. 498; 8 Wend. 483.

The objection that, the suit being brought upon the written contract, for the benefit of the assignees, no proof of a parol agreement with, or a declaration to them as such assignees, in reference to the contract, could be given in evidence to affect the rights of the parties under it, is not well taken. The case all shows that the claim to recover was upon the contract, and no other claim was made. The effect of the parol agreement proved was, that if the assignees would go on, advance money and run the logs, the price of cutting and running the logs would be paid, according to the contract, for so much as was cut and run, and no claim for damage made. This was at most only a parol agreement to vary the written contract so far as it required the plaintiffs below to get out four million feet in the year 1859. The proof was given to prevent a recoupment of damages by Litchfield. The recovery was upon the written contract alone.

Campbell, J. Manning and Christiancy, J J. Martin, Ch. J. concurred in the result.

OPINION

Campbell J.:

Suit was brought in the court below upon a written contract, whereby Garratt and Nelson agreed to cut, haul, mark and deliver in Flint River all the pine timber upon certain lands described therein. The provisions important to be considered were as follows: Not less than two millions feet were to be delivered in 1858, and not less than four millions in each of the ensuing three years, and all was to be cut from the several lots of land in a specified order, one lot to be stripped before the next was touched. The price was to be two dollars per thousand feet, one dollar per thousand being payable on each two hundred thousand feet when hauled to the water and marked, fifty cents per thousand when run down and scaled for delivery in Flint River, and the remaining fifty cents within sixty days after delivery in Flint River. It was also provided that should Garratt and Nelson fail to perform their work in as diligent and thorough a manner as should be satisfactory to Litchfield, the latter might complete the contract and hold them responsible for any excess in cost above the contract price.

The declaration was filed containing, besides the common counts, special counts averring performance by the delivery of the four millions required by the contract for the year 1859.

Defendants gave notice of several defenses under their plea, and reference will be had hereafter to such as are material. On the ninth day of December, 1858, Garratt and Nelson executed to Dewey and Stewart an assignment of the contract of the following tenor:

"Whereas the undersigned, William H. Nelson and Coe Garratt, have a contract with Elisha C. Litchfield for cutting and putting into Flint River a certain quantity of pine logs, in the manner and for the consideration expressed in said contract, which bears date on the 28th day of December, 1857, and is now, with this assignment, placed in the hands of Dewey & Stewart, of Owosso. And whereas, we have sub-let to Hosea Fletcher the job of cutting and drawing a certain portion of the logs referred to in said contract, for which we agree to pay him eleven shillings and six pence per thousand, as specified in the contract last mentioned.

"And whereas the said Hosea Fletcher has become indebted to said Dewey & Stewart for means to carry on said work, and for other purposes, and is to be indebted for advances hereafter to be made to carry on said job. Now, therefore, in order to secure said Dewey & Stewart for advances so made and to be made as aforesaid, we hereby sell, assign, transfer and set over to said Dewey & Stewart, their executors, administrators, heirs and assigns, the said contract first above mentioned; to have, hold and collect the same for their own use and benefit, and with full power, in our name or otherwise, to collect the money due and to become due on said contract.

"The money received on said contract is to be disposed of and appropriated as follows, viz.: out of the first money so received they are to return whatever may be due to said Fletcher under his contract with us above referred to, to be applied in payment of whatever may be due them from the said Fletcher, for said advances and expenses connected therewith, and with this assignment; and such portions thereof as shall be due us under both of said contracts is to be paid to us.

"It is understood and agreed that said Dewey & Stewart may retain, to apply on the said demand against said Fletcher the...