Waller v. Sloan

• Decision Date: 19 December 1923
• Docket Number: No. 39.,39.
• Citation: Waller v. Sloan, 225 Mich. 600, 196 N.W. 347 (Mich. 1923)
• Parties: WALLER v. SLOAN et al.
• Court: Michigan Supreme Court

225 Mich. 600

196 N.W. 347

WALLER

v.SLOAN et al.

No. 39.

Supreme Court of Michigan.

Dec. 19, 1923.

Error to Circuit Court, Charlevoix County; Frederick W. Mayne, Judge.

Action by Edward C. Waller against Robert F. Sloan and another.Judgment for plaintiff against named defendant, and the latter brings error.Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD. SHARPE, MOORE, and STEERE, JJ.Clink & Williams of East Jordan, for appellant.

Rollie L. Lewis, of Charlevoix, for appellee.

WIEST, C. J.

In this opinion when we speak of defendantwe refer to Robert F. Sloan.

This is a suit on defendant's undertaking to hold kiln wood belonging to plaintiff, and in his possession and intended for sale to the Charlevoix Rock Products Company, until estimates of amount wanted by the company from month to month were made and paid for, and the money placed in bank to the credit of plaintiff.

Defendant was manager of the company, and breached his agreement with plaintiff by letting the company have the wood without payment.

Evidently the financial condition of the company was such that plaintiff was not willing to extend credit to it, and defendant, as manager, was anxious to procure the wood, and this led to the making of the agreement.

Two agreements are involved, and only the substance thereof will be stated.

September 27, 1915, by written agreement, defendant became custodian of 1,500 cords of kiln wood, owned by plaintiff, and piled on premises controlled by defendant.This wood had been cut for intended sale to the Charlevoix Rock Products Company.As general manager of the company wanting the wood, defendant was to estimate the first of each month the number of cords the company desired, and, before letting the company use any, furnish plaintiff evidence that the pay for the estimated quantity, at $1.60 per cord, had been deposited to plaintiff's credit in the Charlevoix County Bank.

Defendant claims that this agreement was abrogated by another made between plaintiff and the rock products company a few days later.October 2, 1915, plaintiff entered into an agreement with the Charlevoix Rock Products Company, in which the company agreed to use the 1,500 cords of wood before January 1, 1916, ‘at the prices agreed upon in a certain contract entered into between the said E. C. Waller and one Robert F. Sloan,’ and, after so using such wood, before purchasing kiln wood elsewhere, the company should use 3,000 cords of wood belonging to plaintiff and 2,000 cords belonging to the Charlevoix Lumber Company, taking such 5,000 cords at the rate of three cords of plaintiff's wood to two cords of the lumber company's; ‘all of the said 5,000 cords of kiln wood to be paid for in accordance with an agreement between said Robert F. Sloan and E. C. Waller, to which this agreement is hereby attached and made a part thereof.’

We do not understand that any of the 5,000 cords of wood was furnished the Rock Products Company under this agreement, and it is in the case only for its bearing upon the question of the liability of defendant with reference to the 1,500 cords of wood mentioned in the first agreement.

The declaration contained counts in assumpsit and trespass on the case.Verdict was rendered in favor of plaintiff and against defendant Sloan, by direction of the court, under the assumpsit count, for $2,600; that being the value of the 1,500 cords of wood at $1.60 per cord as fixed in the agreement, with interest to the date of trial.The Charlevoix County Bank was held not liable, and it is not necessary to even state the theory upon which it was made a defendant.

Defendant Sloan has brought the case here by writ of error, assigning 50 errors.Happily the errors fall within a few groups.

Defendant claims the agreement of October 2d turned the 1,500 cords of wood over to the rock products company, and therefore he was custodian only five days, and after such October agreement he was under no obligation to get pay for the wood before turning the same over to the company.

We do not so read the contract of October 2d.The contract is not artistic, but it speaks plain enough to show it was not to take the place of the agreement between plaintiff and defendant, but only to cover other wood to be paid for as provided in the contract to which it made reference, and defendant's signature to such contract clearly indicates the purpose of having the sale of additional wood carry with it the obligation on his part, assumed in the first contract, with reference to delivery and pay.Upon the face of the second contract Mr. Sloan did not sign as a representative of the rock products company, for the vice president and secretary signed for that company.Mr. Sloan signed because of the reference in the contract to his existing obligation as to the 1,500 cords of wood for the purpose of carrying the terms of his custodianship to the additional wood.

Where the written contract speaks, its language as...