Reichel v. Schneider & Brown Lumber Co.

• Decision Date: 07 January 1924
• Docket Number: No. 65.,65.
• Citation: 196 N.W. 614,226 Mich. 24
• Court: Michigan Supreme Court
• Parties: REICHEL et al. v. SCHNEIDER & BROWN LUMBER CO.

226 Mich. 24

196 N.W. 614

REICHEL et al.

v.SCHNEIDER & BROWN LUMBER CO.

No. 65.

Supreme Court of Michigan.

Jan 7, 1924.

Error to Circuit Court, Marquette County; R. C. Flannigan, Judge.

Action by George Reichel and others against the Schneider & Brown Lumber Company. Judgment for plaintiffs, and defendant brings error. Affirmed on condition that remittitur be filed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Miller, Eldredge & Eldredge, of Marquette (W. T. Potter, of Ishpeming, of counsel), for appellant.

Sawyer & Sawyer, of Menominee, for appellees.

McDONALD, J.

The plaintiffs were engaged in the logging and lumbering business on Dead river. In the summer of 1910, they built a mill at a place known as Dead River pond. Dead river empties into Lake Superior in the vicinity of the city of Marquette. They mortgaged the sawmill, together with the tools and equipments used therein, to one Edward Bice, representing the First National Bank of Marquette. This mortgage was foreclosed, and a sale of the property covered by the mortgage was made. The purchaser conveyed it to Schneider & Brown, copartners. Subsequently, the defendant, the Schneider & Brown Lumber Company, was incorporated and took over the property purchased by the partnership. At the time of the foreclosure there was on the premises a blacksmith shop, in which were certain tools, equipment and material. There was also close by the mill, and attached to it by pipes, a portable steam boiler belonging to the plaintiffs. The plaintiffs also claimed to have had a large quantity of logs which were sunk in the pond. All of this property the plaintiffs say was not covered by the mortgage, but was taken over by the defendant corporation and converted to its use. The purpose of this action is to recover the value of the property so converted. The plaintiffs had a verdict for $13,466.69. The defendant says that the judgment entered should be reversed because of error in the exclusion of certain testimony and in charging the jury that the mortgage of the mill property did not cover the steam boiler.

During the time that they were operating the mill, the plaintiffs purchased some timber land from one Louis Jensen, under a contract which gave them immediate possession and permitted them to cut the timber into logs, which were to be end-marked ‘L. J.’ and banked at Ash Siding. The contract provided that the title to the logs should remain in Jensen until the purchase price of $2,500 was fully paid. These logs were mortgaged by the plaintiffs to the First National Bank of Marquette. The bank secured a release of Jensen's interest, and subsequently foreclosed the mortgage. At the sale the logs were bought by the defendant. The plaintiffs acknowledge the defendant's ownership of these logs, but in the course of the trial offered evidence tending to show that defendant had sawed and converted other logs end-marked ‘J.’ To meet this claim the defendant sought to show that the ‘Ash Siding’ logs, which it had purchased at the sale, were end-marked ‘J.’ For this purpose it offered in evidence the release or bill of sale from Jensen, in which it was recited that the logs were so marked. The evidence was excluded and the defendant says that the ruling of the court in this regard constitutes reversible error.

It is claimed that the exluded instrument was admissible under the rule of evidence relating to declarations as to property by a predecessor in title. It is not contended that it was any part of the res gestae. We do not deem it necessary to refer, except in a general way, to the many cases cited by the defendant in support of this contention. The history and evolution of the principle applied in these cases is interestingly told by Prof. Wigmore in volume 2 of his work on Evidence, beginning with section 1080. It is also discussed by Justices Graves, Campbell, and Cooley, in Cook v. Knowles, 38 Mich. 316. The rule contended for by the defendant has now been quite generally adopted. The only question is whether it can be applied to the particular facts of the case under consideration. It is stated, in Chamberlayne's Modern Law of Evidence, vol. 2, § 1329, as follows:

‘The general rule is that statements of relevant facts made by persons owning real or personal property, made during...