McMaster v. Merrick

• Citation: 41 Mich. 505,2 N.W. 895
• Court: Supreme Court of Michigan
• Decision Date: 08 October 1879
• Parties: WILLIAM MCMASTER and others, v. BENJAMIN W. MERRICK, and others.

2 N.W. 895

41 Mich. 505

WILLIAM MCMASTER and others, v. BENJAMIN W. MERRICK, and others.

Supreme Court of Michigan

October 8, 1879

Facts in this case considered, and held to negative the existence of a lien either by contract or implication of law.

Hatch & Cooley, for plaintiffs in error.

Shepard & Lyon, for defendants in error.

CAMPBELL, C.J.

Plaintiffs who are transferees from the assignees in bankruptcy of George Campbell & Co., replevied certain sawed lumber at Glencoe, in Bay county, from the defendants, who claimed to hold it under a lien for sawing the same as part of a larger amount. The whole amount sawed was 8,000,000 feet. The amount remaining in defendants' hands, when replevied, was about 3,000,000 feet. Under the charge the jury found defendants had a special property to the amount of $3,244.77. Plaintiffs claim that no lien ever existed for any sum. They also claim that, assuming there had been a lien, there had not only been a partial discharge by acceptance of negotiable paper, but a complete one by various acts and transactions to be referred to.

In the beginning of the year 1877 George Campbell & Co. owned a saw-mill, and the apparatus and teams used with it, with a store, boarding-house, and blacksmith-shop, at Glencoe, known as the Glencoe mill. On the third day of April, 1877 Campbell & Co. made what is in form a lease of the mill and all the other property to defendant Merrick, to hold the same without rent until November 15, 1877, the lessors agreeing further to make all repairs requiring an outlay of more than six dollars. In consideration of this lease Merrick, agreed as follows: That he would, during the sawing season between April 5th and November 15th, "saw or cause to be sawed all logs furnished by the said parties of the first part, for the sum of $1.75 per 1,000 feet; and the said party of the second part further agrees to ship or cause to be shipped as per order, for the said parties of the first part, while [during] the running of said mill, at thirty cents per 1,000 feet; and all lumber passing through the dry kiln, in connection with said mill, for shipment, at the order of the said parties of the first part, the said party of the second part agrees that the same shall be handled and seasoned at eighty cents per 1,000 feet." The lessee also agreed to make all repairs under six dollars.

George Campbell & Co. were declared bankrupts to date, from November 20, 1877. Sawing continued at the mill, accounts being kept in the name of C. Sheck and Merrick & Uberhurst, until November 5, 1877, at which time there was unpaid a balance on book accounts of $1,782, and Merrick had negotiable paper to the amount of not far from $1,200, which he claimed should be added to that balance and included with it under the lien.

The amount of sawing and other charges, as entered on the books up to November 1, 1877, was $1,889.64. The sawing during five days in November, not then settled, was $287.26. The debit side of the account consisted of a great number of small items charged from day to day, including orders, money merchandise, supplies and miscellaneous charges. This account was, as already stated, kept partly in the name of Christopher Sheck, and partly in the name of Merrick &amp Uberhurst. The Sheck account began in April, 1877, and included payments down to November 17, 1877, to the amount of $16,180.93. The Merrick & Uberhurst account ran from October 31 to November 30, and the debit side amounted to $1,080.25. There was some small variance of testimony, but nothing very material on this head.

The accounts were admitted to be correct. Of the whole amount earned by Merrick about $2.000 was for drying and shipping lumber. The remainder was for sawing. All the drying and shipping items occurred before the close of business.

The credits and debits were all entered in the same accounts as they arose, and went together into the general balances; and the paper issued by Campbell & Co., in the shape mostly of accepted orders payable to various workmen or to bearer, and which came into the hands of defendants, was charged as payments at the time of issue on general account.

After the work was done the lumber not shipped remained on the premises. No one assumed possession after the lease ran out, while the bankruptcy proceedings were progressing, and Uberhurst continued to stay on the ground in one of the houses. There was conflicting testimony on the quality of his possession. The mill remained vacant. Some questions as to this rose out of the following facts:

In December, 1876, before the lease was made to Merrick and before his sawing contract, Campbell & Co. gave to the First National Bank of Bay City an instrument by way of security for $28,000, authorizing the bank, in case of default, to take possession of any logs and lumber then owned or thereafter acquired, and sell and dispose of them to pay such money. This security was assigned October 19, 1876, to the Canadian Bank of Commerce, and at that time more than $10,000 had become due and was unpaid. On the second day of November J.P. Whittemore, acting for the Bank of Commerce, went to Glencoe, and notified Uberhurst and others that he claimed possession of the lumber, and proceeded, without objection, to go on the piles and...