McGregor v. Ross' Estate

• Decision Date: 16 June 1893
• Citation: 55 N.W. 658,96 Mich. 103
• Parties: McGREGOR v. ROSS' ESTATE.
• Court: Michigan Supreme Court

55 N.W. 658

96 Mich. 103

McGREGOR v. ROSS' ESTATE.

Supreme Court of Michigan

June 16, 1893

Error to circuit court, Marquette county; John W. Stone, Judge.

Petition by Alexander McGregor against the estate of James G. Ross for an allowance of a claim against the defendant for work and services rendered by plaintiff under a contract therefor, and to recover damages for such breach. There was a judgment of the circuit court affirming an allowance of such claim in the probate court, and defendant brings error. Reversed.

Clark &amp Pearl, for appellant.

E. J Mapes, for appellee.

MONTGOMERY J.

The plaintiff recovered below upon a claim originally presented before commissioners on claims appointed in the matter of the estate of Ross. The claim filed was for the price of cutting, putting in, and running a quantity of pine saw logs during the logging season of 1887-88, under a written contract. The contract provided for the putting in of the logs standing upon certain described lands, estimated to amount to about 5,000,000 feet. The agreement on the part of the plaintiff was to cut, skid, haul, and bank said timber upon a branch of the Escanaba river, and below the forks, on section 25, township 44 N., range 28 W., or above the forks on section 24, township 44 N., range 28 W. The timber was to be banked on or before the 1st of April, 1888, and was to be delivered by the plaintiff into the main jam at the mouth of said river during the driving season of that year, and with all diligence and dispatch. For the services to be performed by the claimant, Ross agreed to pay the sum of $5.50 per 1,000 feet,-$1.50 per 1,000 as the logs should be skidded in the woods, $2.75 per 1,000 when the logs were banked at one of the places mentioned, and $1.25 per 1,000 feet when the logs should be driven in the main jam at the mouth of the river. The contract contained this provision: "Said party of the second part, in consideration of the sum of $5.50 per thousand feet, board measure, agrees to cut, log skid, and haul to bank of branch of said Escanaba river, at the place before described, all the pine timber on said above-described lands, to be cut under the direction of a scaler furnished by said first party, being about five million feet." The contract also designated the length and manner of cutting the timber, and provided that the scaler was to scale the logs either in the woods or on the bank of the river, at the option of Ross, by a scaler furnished by him. The claimant offered testimony tending to show that after the execution of this contract he entered upon the performance of the same; got in supplies, built his camp, and started to cut and skid, and make his logging roads; that he then cut the main roads leading from the banking ground to the timber, and completed the same between the middle and the last of January; that in building roads it was necessary first to cut out and grade them, ready to put on a snow plow when the snow came. Plaintiff commenced hauling on the 16th or 17th of January, and at this time had from 60 to 90 men at work, with 9 teams. A portion of this timber was standing upon lands detached from the main body, and this detached portion was the first cut and skidded, and was also the first timber hauled to the banking ground. On the 30th of January, plaintiff purchased 6 additional teams, which were at once placed by him upon the work. On the 14th of February he had banked, according to the report of the scaler, 1,879,477 feet. The plaintiff also introduced evidence tending to show that prior to this time the defendant's agent, Mr. Connolly, had told the plaintiff to stop cutting and skidding; that plaintiff refused to do so; that, while he was absent for a few days, Connolly peremptorily directed the work to cease. The testimony tended to show that Connolly told the plaintiff's foreman, the latter part of January, to quit skidding, and that Cameron, the scaler, also forbade him soon after, stating that such were his instructions from Mr. Connolly. Cameron testified: "I was satisfied that they could get in all the logs there was, but this particular time he [referring to Connolly] made them stop, so I stopped them." Plaintiff further introduced testimony tending to show that when he was stopped he let all his sawyers and swampers go. At the time the claimant was stopped from cutting, there remained upon the land from 800,000 to 1,100,000 feet, which was not cut subsequently by him.

1. The counsel for the estate contend that under the contract giving the right to Ross, through the scaler, to direct the manner of cutting the timber, under the provision of the contract that the cutting of the timber shall be under the direction of the scaler furnished by the first party, (Ross,) ...