Slade v. Lee

• Decision Date: 22 December 1892
• Citation: 53 N.W. 929,94 Mich. 127
• Court: Michigan Supreme Court
• Parties: SLADE et al. v. LEE.

53 N.W. 929

94 Mich. 127

SLADE et al. v. LEE.

Supreme Court of Michigan

December 22, 1892

Error to circuit court, Saginaw county; CHAUNCEY H. GAGE, Judge.

Suit by William H. Slade and Edwin Kelton against Charles Lee to obtain the amount they had paid on a contract for lumber which was destroyed by fire. Judgment on a verdict directed for plaintiffs. Defendant brings error. Reversed.

O F. Wisner, for appellees, in support of the claim that the title was in defendant, cites the following authorities Ballantyne v. Appleton, (Me.) 20 A. 235; Stephens v. Santee, 49 N.Y. 35.

GRANT J.

Plaintiffs were lumber dealers at Columbus, Ohio. The defendant owned a sawmill in Saginaw, Mich., where he was engaged in the manufacture of lumber. In April, 1887, plaintiff Kelton was at defendant's mill, and, on behalf of his firm, made a contract with defendant for the purchase of some lumber of a certain grade and quality, to be manufactured by the defendant during the following season. The lumber was manufactured, and piled, according to contract, along-side the railroad track in the defendant's yard, ready for shipment. Plaintiffs made a partial payment upon the purchase price. Before the lumber was shipped, it was consumed by fire without any fault on the part of the defendant. After the fire, plaintiffs brought this suit to recover the amount so paid, less the price of certain lumber which they had received. The circuit court directed a verdict for the plaintiffs, upon the ground that the title to the lumber at the time of the fire was in the defendant, and that, consequently, the loss must fall upon him. The contract was an oral one, but no question arises under the statute of frauds. In determining the correctness of this instruction by the court, we must first ascertain the contract under the defendant's proofs. His proofs show it to be substantially as follows: He agreed to get out all the 2 1/2 and 3 inch selects and uppers that he could cut out of a certain class of logs that season for $40 per thousand. He agreed to pile them on the inside dock, next to the railroad track. It was agreed that an inspector by the name of Randall should inspect it, and plaintiffs were to pay for it in 60 days after shipment. It was to be shipped as ordered by plaintiffs, and defendant was to load it on the cars at his own expense. Each was to pay one half the cost of inspection. When shipped, defendant was to draw a draft for the price of the lumber shipped, due in 60 days. Plaintiffs agreed that the lumber should be taken away within 60 or 90 days after it was cut. The lumber was cut and piled in December 1887. Defendant notified plaintiffs that the lumber was ready for shipment. They did not order it shipped, and it remained in defendant's yard in four piles until August 7, 1888, when it was destroyed by fire. The defendant also gave evidence tending to show that he requested and urged the plaintiffs to take the lumber away on at least two occasions long before the fire, and that they had promised to do so. That plaintiff Kelton was once present when the lumber was being sawed and piled, and found some fault with two planks, which he claimed were not properly sawed, and that the mill wright said he would take care that no more were sawed in that manner. Plaintiff Kelton was also present at the mill on other occasions, saw the lumber, and found no fault with it. That on one of these occasions he asked the millwright if he was cutting all the 2 1/2 and 3 inch stock there was in the logs. That Kelton requested defendant to cover up the piles, which he did. That Kelton spoke of the lumber as his. That some of the lumber was not entirely consumed. That after the fire, Kelton went to defendant's yard, and ordered what was not entirely consumed put upon the cars, and shipped to him, which was done. That the four piles were estimated to contain about 134,000 feet, of which 2,000 or 3,000 might not have been up to the grade of selects and uppers. The above is a substantial statement of the defendant's version of the contract, and of the facts and circumstances connected therewith, which are claimed to throw light on the transaction, and show the intent of the parties as to the title. The position of the defendant is that the question of whether the title passed was, under the circumstances, one of fact for the jury, and not of law for the court to determine; while plaintiffs contend that inspection was necessary to determine the amount, quality and value, and was therefore a condition precedent to passing title.

Plaintiffs' counsel cite and rely upon the following decisions in this court: Lingham v. Eggleston, 27 Mich. 324; Hahn v. Fredericks, 30 Mich. 223, Wagar v. Farrin, 71 Mich. 370, 38 N.W. 865; Blodgett v. Hovey (Mich.) 52 N.W. 149. Defendant's counsel cite and rely upon the following decisions: Byles v. Colier, 54 Mich. 1, 19 N.W. 565; Jenkinson v. Monroe, 61 Mich. 454, 28 N.W. 663; Colwell v. Iron Co., 36 Mich. 51; Whitcomb v. Whitney, 24 Mich. 486; Sandler v. Bresnaham, 53 Mich. 567, 19 N.W. 188; Carpenter v. Graham, 42 Mich. 193, 3 N.W. 974; Wagar v. Railway Co., 79 Mich. 648, 44 N.W....