Mitchell v. Hosmer

• Decision Date: 07 October 1874
• Citation: 30 Mich. 227
• Court: Michigan Supreme Court
• Parties: William Mitchell and another v. Gustavus V. Hosmer

30 Mich. 227

William Mitchell and another v. Gustavus V. Hosmer

Supreme Court of Michigan

October 7, 1874

Submitted on Briefs July 22, 1874.

Error to Bay Circuit.

Judgment reversed with costs, and a new trial ordered.

Marston Hatch & Cooley, for plaintiffs in error.

Holmes Haynes & Stoddard, for defendant in error.

OPINION

Graves, Ch. J.:

This was an action of assumpsit brought by the plaintiffs in the court below to recover a balance they claimed for towing certain rafts for defendant. The defendant insisted that what he had already paid was fully sufficient to satisfy for the true quantity of logs which had been towed and delivered. He also set up a claim by way of recoupment, and which he founded upon the alleged default and misconduct of the plaintiffs in performing their duty in regard to the towage and delivery. The plaintiffs recovered sixty-eight dollars and seventy-three cents; and, being dissatisfied with this finding, they have brought the case here for review upon writ of error and bill of exceptions. Before noticing any of the legal questions, it is best, perhaps, to advert to several of the facts. In the season of 1869 the plaintiffs were engaged in towing with steam tugs on Saginaw Bay and Lake Huron; and the parties hereto entered into an agreement that during the fall of that year the plaintiffs should tow for the defendant a quantity of logs from Rifle River, in Saginaw Bay, to Tawas, at fifty cents per thousand, and return the boom sticks free. Pursuant to this arrangement, some six rafts were towed, on which the defendant paid six hundred and thirty dollars. The plaintiffs claimed that they were entitled to the further sum of one hundred and twenty-five dollars and fifty-seven cents, with interest from October 10, 1869.

The main question is connected with what took place concerning the fifth raft. According to the proof on both sides, this raft was to be delivered at Adams' mill at Tawas; and the evidence conduces to show that the plaintiffs' tug, under the command of one of the plaintiffs, Mr. Mitchell, arrived with the raft between midnight and daylight on the morning of Saturday, the 15th of October near the entry of the boom connected with Adams' mill; that within a pretty short time the persons in charge of the tug tied the raft to Adams' dock and to an adjacent one belonging to Mr. Grant; that the weather was then good, and Captain Mitchell, as soon as the raft was thus tied outside the boom, left it and returned with the tug to Au Sable for another raft; that early in the morning Mr. B. M. Hosmer, the defendant's agent, discovered the raft tied outside of the mill boom, and, feeling uneasy as to its safety, immediately tried to get help to place it inside; that before this could be accomplished the wind and sea arose, and became so violent that before he could swing the rear end around Grant's boom, in order to effect an entrance into that of Adams', some of the cribs went ashore and part of them astray, and some forty-two logs escaped into the open bay and were lost; that most of the logs which were cast upon the shore were separated from their cribs, and had to be re-rafted by defendant; that the plaintiffs did not return with the tug until the 16th or 17th, the evidence differing as to the day. The testimony was somewhat conflicting as to the state of fitness of Adams' boom for admitting the raft when the tug arrived there, and also as to the facilities afforded for booming, and as to what occurred between the person in charge of the boom and Mr. Mitchell, as master of the tug, and his servants. Captain Mitchell testified that when he came abreast of the boom entrance, he saw the man who usually attended to it; that this person did not tell him to put the raft into the boom, or say that he would open it, or give any directions about putting the logs within it; that he, Mitchell, was employed about an hour and a half in tying the raft, and during that interval saw no other person there. At a subsequent stage of the trial, and after the defendant had introduced his defense and rested, the plaintiffs gave evidence tending to show further that when the tug arrived opposite the boom door or entrance, there was a large quantity of logs inside; that the boom was nearly two-thirds full, and that the logs were pressed by the wind against the gateway; that the man in charge informed the managers of the tug that he could do nothing; that he could not move the logs which were against the opening, and could not prepare the...