Merick v. McNally

• Decision Date: 14 January 1873
• Citation: 26 Mich. 374
• Court: Michigan Supreme Court
• Parties: Eldridge G. Merick and others v. Paul McNally and another

26 Mich. 374

Eldridge G. Merick and others v. Paul McNally and another

Supreme Court of Michigan

January 14, 1873

Heard January 7, 1873

Error to Bay circuit.

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

Green & Scofield and Ashley Pond, for plaintiffs in error.

Marston & Hatch, for defendants in error.

Campbell J. Christiancy, Ch. J., and Graves, J., concurred. Cooley J., did not sit in this case.

OPINION

Campbell, J.:

The suit below was brought on behalf of McNally, as original contractor, and Henratty, as his assignee of a half interest in the contract, against plaintiffs in error, to recover the price of lumber furnished. The defense rested on an alleged failure to comply with the contract. The agreement was made September 21, 1869, for the purchase of timber, to be delivered in the early part of the next year; and the terms which are material in this present record, are as follows:

"Said Paul McNally agrees to get out and deliver to said Merick, Fowler and Esselstyn, at or near Wenona, sixty thousand cubic feet square white oak timber, to be sound, straight, well lined and well dressed, and every way suitable for Quebec market, and to average not less than seventy feet to the stick; to be ready for shipment on the opening of navigation next spring, and to be delivered in a convenient manner for loading at the stern of the vessels Merick, Fowler and Esselstyn may send for it; and should any vessel they may send require a portion of the timber to finish cargo outside of bar at mouth of the Saginaw river, said McNally to raft it up free of charge, in a secure manner, to tow outside." The remaining clauses refer chiefly to terms of payment, and to the places from which the timber was expected to be cut. It was also agreed that the purchasers might, at any time, send a person to inspect and mark the timber; and that if McNally got out more timber than was named, they should have a preference in the purchase.

A considerable amount in excess was delivered to the purchasers, of which there were claimed to be enough pieces averaging seventy feet, to make up the sixty thousand feet specified, while the remainder was much smaller, and of much less value per foot.

Upon the trial, a witness, sworn to be familiar with the custom of measuring square oak timber got out for the Quebec market, was asked: "Are you able to state what the custom is with regard to measuring fractions of a foot?" This was objected to. Thereupon counsel for plaintiffs in error stated that they proposed to show, that the custom has been and is general, that all square oak timber for the Quebec market is measured without reference to the fractions of a foot; that they are thrown out, and no inches or parts of an inch are measured, according to the custom of measurement for that market; that this custom existed through the Saginaw valley, and was intended to supply what is necessarily lost in the handling and moving the timber, which reduces the quantity as much, or more, in the market, as the amount deducted.

The court rejected the evidence, on the ground that the custom was unreasonable.

We think the interpretation claimed for this custom by the defendants in error, on the argument in this court, namely: that all measurements of width and length, beyond even feet, were rejected, is not the true meaning. At that rate, any timber less than a foot wide would count as nothing, and timber an inch short of two feet in width, would count as a foot wide. This is evidently a different thing from what the evidence shows to have been meant, which is, merely, that if the cubic contents of a log should be a certain number of cubic feet, and a fraction of a foot over, the fraction should not be counted.

It appears from the testimony, that the amount of fractions that would be thrown out, on the whole timber furnished, would be between four hundred and fifty and five hundred feet, or in the neighborhood of three-fourths of one per cent.

The case shows further, and it is part of the common knowledge of the country, that where trees are cut for such timber, not only is the outside timber, beyond the lines where a broad plane surface can be reached, rejected, but, where the sides are not parallel, all is rejected in the estimate beyond that included within the width of the shortest opposite sides. The reason for this is obvious enough; for the timber is valued as square timber, and that...