Rayburn v. Mason Lumber Co.

• Decision Date: 10 June 1885
• Citation: 57 Mich. 273,23 N.W. 811
• Court: Michigan Supreme Court
• Parties: RAYBURN v. MASON LUMBER CO.

23 N.W. 811

57 Mich. 273

RAYBURN v. MASON LUMBER CO.

Supreme Court of Michigan

June 10, 1885

Error to Alpena.

Turnbull, Shields & Dafoe, for plaintiffs.

Carpenter & Williams, for defendant and appellant.

CAMPBELL J.

Plaintiffs sued defendant for various services in handling logs. Defendant, among other defenses, relied on certain set-offs and settlements, and upon a claim for the rent or use of a dam, rented to plaintiffs, and intended to aid in raising a head of water in Hubbard lake, at the outlet of which it was built, so as to help the log-driving in the stream below. This lease was made by a firm of Mason, Luce & Co., the predecessor of the defendant corporation, October 12, 1878 and the lessee covenanted to pay (in addition to keeping in repair) one-half of the gross receipts of the dam, which would consist, as therein specified, of "all tolls and money that may be earned by the use of said dam for driving logs, or other purposes."

On the trial, after plaintiff Robert Rayburn had proved the lease and it had been read, and evidence was given to prove its assignment by Mason, Luce & Co. to defendant, an objection was made and sustained that it must be proved by the subscribing witness, who was not produced. The same ruling was made on various occasions during the trial. There seems to have been more or less reference to this lease in the testimony and in the charge, but as it was ruled out when objected to, it is not presumable that it was dealt with as in full force. We think that it was too late to raise the objection after the paper had been proved by Rayburn and read without objection. But we further think that where one of the parties in interest chooses to allow or to call the other party to prove an instrument, he may do so without calling the subscribing witness. Although there has been no entire agreement of courts on this subject where parties can be witnesses, the necessity of calling subscribing witnesses has not always been put upon tangible ground. Where parties could not be sworn, it was reasonable to hold that the subscribing witness was a person who became so by agreement for their protection, who could not be dispensed with. It may be very proper to allow a party to decline calling his adversary, and to insist that this witness shall, if practicable, be produced. But where one party is willing to call the other, the latter can usually have no reason to complain, and we...