Smith v. Smith's Estate

• Decision Date: 18 March 1892
• Citation: 51 N.W. 694,91 Mich. 7
• Parties: SMITH v. SMITH'S ESTATE.
• Court: Michigan Supreme Court

51 N.W. 694

91 Mich. 7

SMITH v. SMITH'S ESTATE.

Supreme Court of Michigan

March 18, 1892

Error to circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

Claim by James B. Smith against the estate of Eugene Smith. From a judgment of the circuit court affirming the decision of the commissioners on claims disallowing the claim, claimant appeals. Affirmed.

Atkinson, Vance & Wolcott and Lincoln Avery, for appellant.

Frank Whipple, (H. W. Stevens, of counsel,) for appellee.

MORSE C.J.

James B. Smith, as assignee of Abram Smith, presented a claim against the estate of Eugene Smith, deceased, before the commissioners on claims, for logs loaned as follows:

May 26, 1873. Pine logs ..... 128,480 ft. at $12 per M.

June 2, 1873. Pine logs ..... 127,440 ft. at 12 per M.

Nov. 1, 1873. Short logs ...... 4,236 ft. at 12 per M.

Nov. 1, 1873. Long logs ..... 336,073 ft. at 12 per M.

Nov. 1, 1873. Hemlock logs ...... 998 ft. at 8 per M.

Aug. 22, 1874. Pine logs ....... 2,060 ft. at 12 per M.

In the statement of his claim, it was admitted that Eugene Smith returned to Abram Smith logs of the value of $1,230.39, leaving due to Abram the sum of $4,001.43, with interest from the year 1884. Upon the trial in the circuit court for the county of St. Clair, on appeal from the commissioners' action in disallowing this claim, it appeared from an account of this transaction upon the books of Abram Smith that the logs received from Eugene Smith were returned in the years 1874 and 1875. It was also shown that a demand for the balance of the logs was made upon Eugene Smith in 1887. The circuit judge instructed the jury that the claim was barred by the statute of limitations, and they found a verdict disallowing the same. As the circuit judge said in his charge to the jury, there was only one witness who testified to the contract between the parties, William Armstrong, who was rafting logs in Black river in 1873 and 1874 for both Abram and Eugene Smith. He testified that Eugene's mill was short of logs, and he requested witness to ask Abram if he would not lend him some of his logs to keep his mill going until he got his logs in market. Abram told Armstrong to let Eugene have the logs, and have Mr. Wheeler scale them. The logs were to be returned; but when, the witness is unable to state. Some were returned. In speaking of Eugene getting his logs into market, he referred to logs Eugene then had up the stream in Black river. This is all the evidence there is in the record as to the contract. It is evident that the same logs were not to be returned, and it is probable that it was contemplated between the parties that logs of like kind and quality should be returned as soon as Eugene's logs, then on hand, came down the stream and into the St. Clair river. Eugene's mill was located at St. Clair, and Abram's at Algonac. Eugene died in March, 1888.

Error is assigned upon the rejection of certain testimony. It was proposed to show by Abram Smith that, when Armstrong came to him to request a loan of the logs to Eugene, Abram said to him, in substance, that he might have them, as he had more than he needed at that time, but they must be returned to him when he demanded them, and that Armstrong, for Eugene, assented to that arrangement, and in reliance upon it the logs were sent to Eugene. The offered testimony was rejected for the reason that Abram was disqualified, under the statute, from testifying to matters equally within the knowledge of Eugene. The testimony was competent. Ward v. Ward, 37 Mich. 253; Cotherman v. Cotherman's Estate, 58 Mich. 467, 25 N.W. 467; Jones v. Beeson, 36 Mich. 214; Seligman v. Ten Eyck's Estate, 49 Mich. 109, 13 N.W. 377; Wheeler v. Arnold, 30 Mich. 307.

Assuming in their brief that this testimony was admissible, and that the case should be treated as if it were in, plaintiff's counsel argue that the loan of these logs was not a sale, but a gratuitous loan for consumption, to be returned in kind quality, and quantity when demanded, and therefore in the nature of a bailment. It is then further contended that no right of action would lie against the bailee until a demand was first made, and that the statute of limitations would not commence to run until after such demand. The circuit judge thought that the transaction was a sale; but he further held that if Eugene was to return logs of like quality, kind, and quantity, upon demand, and such a demand was necessary before Abram would have a right of action for them or their value, still the demand must be made in some reasonable time, and that such reasonable time must certainly be within the statute of limitations. The last transaction between these parties in reference to these logs was shown by the books of Abram Smith to have been on the 11th day of October, 1875. No demand is proven to have been made until 1887, about 12 years after the loaning of the logs. It is also shown that Eugene Smith quit lumbering in St. Clair in 1876, his mill being burned at that time, and that he ceased lumbering altogether in 1881, six years before the proven demand was made. Defendant's counsel claim that Abram Smith's books show an open mutual account current between the parties, and that it was barred in six years from October 11, 1875. It appears very plainly from Abram Smith's books that he treated this matter as one of debit and credit, as he would have done in any other transaction of barter and sale. He charged the logs at the date they were taken by Eugene to him, and credited him...