Wagar v. Farrin

• Decision Date: 11 July 1888
• Citation: 71 Mich. 370,38 N.W. 865
• Court: Michigan Supreme Court
• Parties: WAGAR v. FARRIN.

38 N.W. 865

71 Mich. 370

WAGAR v. FARRIN.

Supreme Court of Michigan

July 11, 1888

Error to circuit court, Oceana county.

Assumpsit on a contract for the sale of lumber, by George A. Wagar against Matthew B. Farrin. Judgment for plaintiff, and defendant brings error.

T J. O'Brien and J. H. Campbell, (E. F Uhl, of counsel,) for appellant.

L G. Rutherford, (W. E. Ambler, of counsel,) for appellee.

CAMPBELL J.

Plaintiff sued the defendant for the breach of a lumber contract in not accepting and paying for lumber sawed. Upon the trial the testimony and issues presented by plaintiff took a wide range, and the record is accordingly quite large. But the assignments of error, though numerous, are confined on the argument to a narrow controversy, and the case need not be detailed at length. On the 15th of August 1882, plaintiff, by written contract, made an agreement to sell 6,000,000 feet of pine, that should be cut in specified grades, at specified prices. These were three grades of clear uppers, at $34 a thousand; selects, $25; fine common, $19; common, $10; clear strips, $30; A. & B. strips, $25; C. strips, $18; shipping culls, $6. The lumber was to be cut and cross-piled, and cut as fast as possible at plaintiff's mill, commencing the next October. Should the cut exceed 6,000,000, defendant could have the overplus, if he saw fit, at the same rates. Defendant agreed to take the 6,000,000, and pay for it as follows: Two-thirds in 90 days from the 1st and 15th of each month, for what is sawed; the balance, one-third, in 30 days from the time of shipment,-to be paid in notes and drafts that Wagar could use at bank. The contract closed as follows: "And it is agreed by both parties that the sorting and inspection shall be final when loaded in cars, and Mr. Backus shall be the inspector, providing he can be obtained; if not, some other party agreed upon; sorting, inspecting, and loading to be paid by both parties equally." After some delay, plaintiff sawed over 2,000,000 feet, and piled it in the mill-yard, of which something over half a million was shipped. Instead of having the lumber inspected provisionally when it was piled, an understanding was had that eight dollars per thousand feet should be advanced as the estimated two-thirds, and advances were made to that full amount, as claimed by defendant, and to a somewhat smaller amount, as claimed by plaintiff. In November, 1883, over a million and a half feet were burned in the yard. Plaintiff claimed the lumber belonged to defendant, and stood at his risk. This defendant denied. Both parties had insurances on their respective interests, but not to the full value of the lumber. In December, 1883, plaintiff brought this suit, not to recover the price of lumber...