Skeels v. Starrett
| Decision Date | 17 June 1885 |
| Court | Michigan Supreme Court |
| Parties | SKEELS v. STARRETT. |
Error to Muskegon.
Smith Nims, Hoyt & Erwin, for plaintiff.
Cook De Long & Fellows, for defendant and appellant.
This action was brought to recover damages claimed to have been sustained by the plaintiff in consequence of certain trespasses committed by the defendant on lands belonging to plaintiff, in the county of Muskegon, on and subsequent to May 1, 1882. The declaration contained two counts. One was the ordinary count in trespass, and the other a count under the statute, and upon which the plaintiff recovered.
The plaintiff's evidence tended to show that he was the owner of the land in question; that the defendant entered upon the lands, and, in 1882, cut down trees, converted them into saw-logs, and took from the lands logs to the amount of 33,712 feet, and in 1883, 33,549 feet; that he also cut and left on the ground logs to the amount of 29,840 feet. The evidence also tended to show that to obtain these logs the best timber was selected from some 14 or 16 acres of land the stumpage value of which was variously estimated at from four and a half to fifteen dollars per thousand. The defendant denied the trespass of 1882; admitted that he cut timber on the plaintiff's lands in 1883, but says "he had a legal right to do so because the timber belonged to him by virtue of a written contract of sale executed by defendant to him, August 22, 1882."
On the eighth day of May, 1882, the plaintiff made a written contract with Smith & Field, by which he agreed to sell, cut and deliver afloat in White river, during the winter of 1882-83, all the merchantable pine timber then standing on certain lands, including the lands in question, providing there should be a sufficient amount of snow. In August following, the parties, Skeels and Starrett, made a contract, which the plaintiff claims was verbal, and by which he sold to defendant all the refuse pine timber on the land mentioned in the Smith & Field contract, after it had been stripped according to that contract, and with the distinct understanding that whatever the Smith & Field contract called for, Starrett was not to have, whether Smith & Field took it or not. The defendant claims the contract was in writing, and that by its terms he became the owner of all the pine timber on the lands after Skeels had ceased to deliver logs under the Smith & Field contract.
It appears that Skeels delivered to Smith & Field, under his contract with them, all the pine from one lot of 80 acres; but that, on account of there being too much snow, he only cut from about 40 acres of the particular lot in question, leaving in the spring of 1883 some 40 acres uncut, and which was estimated to contain from 700,000 to 1,000,000 feet of merchantable pine timber. The jury assessed the plaintiff's damages at $672.91, and found specially that the trespass for which they assessed damages was voluntary and without the leave of the plaintiff. Whereupon the court trebled the damages, and entered judgment in favor of the plaintiff and against the defendant in the sum of $2,017.83.
The written contract entered into between the parties must control their rights; and all evidence of contemporaneous oral agreement upon the same subject-matter, varying, modifying, or contradicting the written agreement, was inadmissible. The defendant relied upon this written agreement as (1) conveying to him the timber in question; and (2) if he was mistaken in his construction of the agreement, as evidence tending to prove that the trespass was committed under a claim of ownership, and as bearing upon the question whether the damages could lawfully be trebled by the court. We do not think the written agreement conveyed to defendant the timber in question, under the facts disclosed in the record; and, as the only significance it can otherwise have, is its bearing upon the action of the court in trebling the damages found by the jury, we do not think, in the disposition we shall make of that question, a new trial should be ordered on account of the error in admitting the testimony of the oral agreement.
The first and second assignments of error were based upon objections made to questions asked the witness Joseph Stevens. The witness had testified that he saw defendant on the land taking off the pine; that he had been upon the land since to ascertain how many trees had been cut; had made a scale of what was on the ground in 1882, and what was taken off in 1883, and on the ground. The plaintiff's counsel then said, "I may as well offer, then, these as the scale he made of the logs." Defendant's counsel inquired, "What logs?" Plaintiff's counsel replied: Defendant's Counsel. Plaintiff's counsel did not read them in evidence. He then asked the witness: "Tell us the amount you found was taken off then, in the summer of 1882." Defendant's Counsel. "I object; he has not laid any foundation, having given the witness a paper to refresh his recollection with." The Court. "Did you make that paper?" Witness. "I made it myself." The Court. "I overrule the objection." The defendant's counsel excepted. The witness began answering, when counsel for defendant again objected "that it is incompetent, under the ruling so far, or the question put to the witness, for him to undertake to read that paper." The court overruled the objection and the defendant excepted. The ruling was correct. The question called for the fact as to the scale of the logs. The scale was made by the witness, and he could use the scale to aid his memory. Indeed, by proving the correctness of the scale, it would be admissible as original evidence.
Counsel for defendant claims that, before the witness testified respecting the scale of the logs, he had a right to cross-examine him thereon, and that he was denied that right. The record discloses that it was the counsel for plaintiff who denied him that right, and not the court, and no exception was taken thereto.
Charles Serfling, another witness for plaintiff, testified as to his experience...
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