Utley v. S.N. Wilcox Lumber Co.

• Court: Michigan Supreme Court
• Writing for the Court: CHAMPLIN, J.
• Citation: Utley v. S.N. Wilcox Lumber Co., 59 Mich. 263, 26 N.W. 488 (Mich. 1886)
• Decision Date: 20 January 1886
• Parties: UTLEY v. S.N. WILCOX LUMBER CO.

26 N.W. 488

59 Mich. 263

UTLEY v. S.N. WILCOX LUMBER CO.

Supreme Court of Michigan

January 20, 1886

Case made from Newaygo.

George Luton and A.G. Day, for plaintiff and appellant.

W.D. Fuller, for defendant.

CHAMPLIN J.

The plaintiff brought an action of trover against the defendant for the conversion of certain pine saw-logs. On the first day of November, 1877, one Sextus N. Wilcox was the owner of certain land situated upon sections 31 and 32, in township 14 N. range 11 W., upon which was a quantity of standing pine timber trees, estimated to contain 1,700,000 feet, more or less, of merchantable pine saw-logs. On that day he entered into a written contract with the plaintiff in this suit, by which plaintiff agreed to purchase, and Wilcox agreed to sell to him, said timber for the sum of $2,500, payable in two equal payments on the first days of June and July, 1878. To enable plaintiff to make the purchase, Wilcox agreed to advance plaintiff, in supplies necessary to prosecute the job, a sum not exceeding three dollars from the store of S.N Wilcox & Co., or in lumber from S.N. Wilcox Lumbering Company, before the cutting was commenced, and to pay the further sum of 75 cents per thousand feet as fast as the logs were skidded on said land, and one dollar per thousand feet as the logs were delivered in and along the banks of the Muskegon river. Plaintiff agreed "to commence at once on said job, and to prosecute it with vigor so as to get in all the timber on said land during the" then "coming winter." It was further agreed that should the winter be such that all of the saw-logs could not be gotten in before the snow went off in the spring of 1878 plaintiff was to have the right to cut and remove the balance of the saw-logs on said lands in the winter of 1878 and 1879 or until May 1, 1879, to finish the job, but the entire purchase price of said timber, and the advances made, it was agreed should be a lien upon the logs, to be held by Wilcox until paid, or assumed by a purchaser of the logs who should be satisfactory to Wilcox; and it was agreed that, should plaintiff succeed in selling the logs at any time during the winter or spring to any man or firm who would be satisfactory for pay to said Wilcox, in the amount of the $2,500 above agreed upon as stumpage, to be paid as above, and in the amount of supplies and advances up to that time, then, from that time forward, Wilcox was not to be obliged to advance anything further. Wilcox was to have the right to reject any purchaser who might not be satisfactory to him, and should no purchaser be found who was satisfactory to both parties, then the logs were to be scaled, and marked with a marking hammer of Wilcox; and if a sale of the logs were not made by plaintiff before March 10, 1878, Wilcox had the privilege of taking them at five dollars per thousand feet, and out of the purchase price he was to retain and repay himself all balances due him under the agreement; and for two-thirds of the surplus he was to pay plaintiff in supplies in 60 days, and the balance in 60 days thereafter.

The legal effect of this contract was that Wilcox, the owner of the land, sold to Utley the pine timber thereon for $2,500, Utley to cut and remove the same therefrom during the winter of 1877-78, or, if it could not be done for lack of snow, then he was to cut and remove the same during the winter of 1878-79, and before May 1, 1879. The title of the timber passed to Utley immediately upon the execution of the contract, Wilcox to have a lien thereon, as between him and Utley, for the purchase money, advances, etc. The license to enter, and remove the timber, continued, in the contingency stated, until the first day of May, 1879. Johnson v. Moore, 28 Mich. 3; Monroe v. Bowen, 26 Mich. 523; Richards v. Tozer, 27 Mich. 451; Haskell v. Ayres, 32 Mich. 93. The express agreement of Utley was that he would commence at once on the job, and prosecute it with vigor, so as to get in all the timber on said land during the coming winter, and, in case the winter was such that all of the saw-logs could not be gotten in before the snow went off in the spring, he should have the right to cut and remove the balance of the saw-logs on said lands in the winter of 1878-79, "or until May 1, 1879, to finish said job." The intention is clearly expressed to limit the time in which he might cut and remove the saw-logs, and is ruled by the cases above cited.

The record shows that Utley went on, and cut, up to April 18 1878, under the above contract, 5,272 pine saw-logs, amounting to 878,024 feet, board measure, 1,365 of which had been put afloat in Muskegon river by Utley, 3,757 were on the skids on Utley's job, 414 were on the prairie, and 336 were at Murphy's farm. By the contract Utley had the next winter to put these logs in the river, and as many more as he desired to cut; but, with reference to these logs already cut, and not put, the parties made a new contract, by which Utley agreed to put them in the Muskegon river on or before September 1, 1878. Wilcox had advanced,...