Minor v. Bewick

• Decision Date: 07 January 1885
• Court: Michigan Supreme Court
• Parties: MINOR v. BEWICK and others.

22 N.W. 12

55 Mich. 491

MINOR v. BEWICK and others.

Supreme Court of Michigan

January 7, 1885

Appeal from Alpena in chancery.

Seth L Carpenter, for complainant.

R.J Kelly, for defendants, Bewick, Comstock & Co.

J.J Van Riper, for Jas. M. Neasmith, defendant and appellant.

CAMPBELL J.

Complainant filed a bill in the nature of an interpleader, to determine whether certain notes made by him should be paid to the state land-office, or to the defendants, Bewick, Comstock & Co. The controversy is, therefore, between the defendants, and arose in this wise. In the beginning of 1878, Minor, the complainant, bought a considerable amount of logs from one James McElroy. It was claimed by Gen. Partridge, who was then land commissioner, that a large part of these logs had been cut on state lands. A settlement was made between the commissioners and McElroy, whereby $2,100 was to be paid in short paper, and a further sum of money in addition, amounting to $122. By arrangement, Minor gave his personal notes, being two of $1,050 each, payable to the order of B.F. Partridge, commissioner, in four months, at the American National Bank, Detroit, and these were accepted in settlement. These notes were to mature on the eighteenth of September, 1878. A few days before their maturity McElroy filed a bill to restrain the land commissioner from collecting them, setting up as reason that the amount of timber which he really cut from the state lands had been overestimated, and that he had been thereby led to pay more than twice what he should have done, estimating the logs at two dollars a thousand, which he claimed to have been the price agreed on upon the settlement. During the pendency of this suit the notes remained in the hands of the state, and were not presented for payment.

In August, 1881, McElroy's bill was dismissed, and he appealed to this court, but the appeal has not thus far been pressed for hearing. Minor then, being about to leave the state for a journey, and to be away for some time, made arrangements with his bankers to have the notes paid on presentation, and deposited money for that purpose. Mr. Van Riper, who entered on the duties of attorney general in January, 1881, ascertained a few months thereafter the condition of the litigation, and that James D. Turnbull was counsel for McElroy, and expressed to him a desire to get the matter closed up as soon as it could be. Turnbull had an interview with him in the fall, and proposed to leave it to him, after he should examine into the facts, to determine what would be fair and just. This Mr. Van Riper would not undertake, but desired an interview at some convenient time to talk it over. They had a casual meeting at Lansing in January, 1882, and it was understood they would meet, and they did meet, in February. At this meeting a conference was had with Mr. Neasmith, the commissioner, and the result was an agreement that the notes should be given up to Mr. Turnbull on payment of $1,100; and this agreement was carried out, and the money paid over. The controversy turns on this agreement chiefly, and the purposes for which it was made, and the understanding which led to it. Turnbull claims that he appeared in the matter for the purpose of compromising and settling the McElroy suit, and that the notes belonged to himself by assignment from McElroy, and he was entitled to collect them from Minor for his own benefit. There seems to be no doubt that he was entitled to any interest owned by McElroy.

The state authorities testify unequivocally that in this arrangement of February, 1882, Mr. Turnbull was acting ostensibly on behalf of Minor, and of no one else, and that they were only induced to compromise by his representation that the trespass was overrated, and that Minor ought not to pay as much as $1,100, but would pay that, but no more, as he was anxious to close it up; that their action was based on Minor's departure, and the likelihood that he would pay no more, and that no one else was supposed to be interested in the agreement of settlement, and they are positive that no conditions were made in any other interest. Prior to this time these officers had heard reports that Minor had deposited money to pay these notes, but they testify that Turnbull's assertions led them to infer that this was not so, and that he would not pay beyond the amount of $1,100.

On the ninth of May, Mr. Van Riper, having discovered that Minor had made provision for paying the whole amount of the notes, and that Turnbull had claimed that he owned them on his own account, called on Mr. Turnbull to have the settlement canceled and the notes returned, and an agreement was made that it should be rescinded, and the notes returned. Turnbull admits this last agreement, but claims that it was with the understanding that the...