Peters v. Gallagher

• Decision Date: 23 October 1877
• Citation: 37 Mich. 407
• Court: Michigan Supreme Court
• Parties: Richard G. Peters et al. v. Michael W. Gallagher

37 Mich. 407

Richard G. Peters et al. v. Michael W. Gallagher

Supreme Court of Michigan

October 23, 1877

Argued October 3, 1877

Error to Manistee. (Wheeler, J.)

Assumpsit. Defendants bring error. Reversed.

Judgment reversed with costs and a new trial Ordered.

Bullis & Cutcheon for plaintiffs in error.

Dovel & Morris for defendant in error.

OPINION

Marston J.

Gallagher brought an action of assumpsit to recover the price and value of services claimed to have been rendered bye him in and about breaking a rollway of logs, made up in part of his own logs, and in part of defendants' logs. Defendants pleaded the general issue and attached thereto a notice of set-off and also of recoupment.

Upon the trial of the issue the plaintiff was sworn in his own behalf and testified that in the winter of 1874-5 he was logging on the south branch of the Manistee river and that he put logs into the river on defendant Peters' land; that he had a talk with Mr. Peters about putting these logs in on his rollway and hauling on his (Peters') roads; that witness told Mr. Peters he would make extra turn-outs for the teams, and would keep the roads in repair. He also testified that there was some talk about his putting on a sprinkler and wetting down the road, but that he did not agree to do this. The defendant Peters, in reference to this same matter, testified that he, Peters, had built the roads and rollways at a large expense; that Gallagher said he would put on men to keep the roads in repair, and agreed to make extra turn-outs for the teams so that there should be no delay to his (Peters') teams; that Gallagher agreed to put men on the river to keep the logs clear from the rollway, and agreed to put a sprinkler on the roads so that they would pack; that Gallagher agreed to so use the roads and rollway that he (Peters) should not suffer any detriment from his (Gallagher's) use of the roads and rollway.

The plaintiff also testified to a conversation which he afterwards had with defendant Peters at Calkins' store about breaking the rollways, which he claimed was an express promise to pay for such extra services. This conversation Peters denied, but even without such denial, while such evidence was admissible and was proper, with all the facts and circumstances in the case, to be considered by the jury, yet it was not sufficient to establish an express agreement between the parties as to breaking the rollway. The right of the plaintiff to recover, therefore, grows out of the original agreement between the parties under which the logs were banked. What such agreement was, or the extent of it, or whether it was, in the light of all the surrounding circumstances, broad enough to embrace and cover the extra work, if any, done by plaintiff in breaking this rollway and putting afloat the logs, we do not undertake to say. That agreement was not in writing, and it was and is a proper question for a jury to consider whether under that agreement, and in the light of the surrounding circumstances, the defendants would or would not be liable under the general rules we here endeavor to lay down.

The agreement entered into between parties, the usage upon the subject, or the relations existing between the parties and the surrounding circumstances, may be such as to repel any idea or presumption of a promise to pay for such extra services.

Where a party owning a banking ground on which his own logs can be banked and managed without difficulty, if not mixed with others, allows another, as a favor, to bank logs thereon, the labor necessary to get out the logs of the latter, even although in order to get his logs afloat he had to put afloat the logs of the former, should not, nor any part thereof, necessarily be charged to the owner of the banking ground, in the absence of an express agreement to that effect. The agreement or circumstances under which the owner of the banking ground permits another to bank logs on his grounds, the quantity put in by each, the extra labor, cost and expense occasioned by such additional quantity of logs, these and such other facts and circumstances as would fairly tend to aid a jury in arriving at a just and proper understanding of the entire case, should be admitted and considered, and the jury should, in the light of all the facts and circumstances, fix the relative rights and obligations of the parties.

Where parties mutually agree to, and do bank their logs at the same place, mixing them indiscriminately as they are hauled upon the same banking ground or rollway, in the absence of any special agreement between them, or of any custom, or other special considerations or circumstance tending to regulate and fix their relative rights and duties, we think it would be the duty of each, at the proper time, to put on a sufficient force of men and means, proportioned to the number of logs he had put in, and in view of the size and condition of the rollway as it then exists, to break the same and put his logs afloat. And this should be done within a reasonable time, taking into consideration the stage of the water in the river, the probable or usual length of time for running logs upon such stream, and indeed all such surrounding facts and circumstances as careful, prudent men, engaged in such business and wishing to get their logs to a place of manufacture or market, would be likely to observe. A failure by either party in this respect would render him liable to the other party, upon an implied assumpsit, for any extra labor by him performed, in consequence of such failure. The language of the Court in Mitchell v. Hosmer 30 Mich. 227, as to the mutual rights, duties and obligations of parties under certain circumstances, is equally applicable here, but need not be repeated.

If under the facts and circumstances in this case it was the duty of each, in proportion to the logs by him put in, to assist in breaking this rollway, and the defendants failed in this...