Seligman v. Estate of Ten Eyck

Campbell, C. J.

This case comes up a third time on error from the Saginaw circuit, upon a claim disallowed by the •commissioners on the estate, but allowed at the circuit by verdict. The claim presented was for what remained due under a contract made November 23, 1878, between John P. Kroll and the decedent, whereby Kroll was to deliver 2,000,000 of white pine logs not less than 14 inches in smallest diameter, from section 12, the N. £ of section 13, and the N. E. ¿ of section 14, in town 20 N., of range 1 E. The price was to be five dollars a thousand feet; payable, three dollars when the logs were delivered within the Tittabawassee boom limits, and two dollars, November 1, 1879. -These logs were to be marked “T. E. N.,” and scaled by an .agreed scaler. Ten Eyck died in August, 1879. The logs were cut in the winter of 1878-79, and scaled that winter. .There was claimed to remain due abalance of $3,815.27, Ten Eyck having advanced during his life-time beyond what was due at the time.

The defense was chiefly based on offsets arising from the .sale by Kroll of logs belonging in whole or in part to Ten Eyck, to an extent exceeding any balance on these “ T. E. N.” logs ; and the. principal grounds of error relate to rulings by the circuit court upon the effect of certain contracts and . transfers, and the admission of testimony to do away with their force. There are several minor questions also.

*272 Kroll was lumbering on several sections in the same neighborhood. Sections 11 and 12, and sections 13 and 14, in town 20 N., range 1 E., are the lands on which logs were cut. Ten Eyck, representing a special partnership of O. & E. Ten Eyck, of which he was the general partner, had considerable dealings in lumber with Kroll, had made advances-for him, and had purchased logs of him.

In October, 1877, Kroll made a bargain with George H. Ensley, whereby Ensley was to cut all the white and Norway pine on the N. E. i of section 14, and the N. W. i and .S. of the N. E. ^ of section 13, and bank and float it ready for the first water in the spring of 1878. Kroll could also, at any time before January 1, 1878, require Ensley to cut the' timber on the N. $ of the N. E. £ of section 13. For this, Ensley was to have $2.10 a thousand, payable in fixed sums-as the logs were skidded, banked, and set afloat. The-expenses of scaling were to be divided. O. & E. Ten Eyck guaranteed to Ensley, Kroll’s fulfillment of his obligations. In the same month of October, 1877, Kroll agreed with O. & E. Ten Eyck to sell them all of the common white pine logs to be cut under the Ensley contract, and deliver them-in the boom limits as early in spring as possible, for five dollars-a thousand, taken under the scale provided for by Ensley & Kroll. All sums paid or assumed to Ensley, or to Ortmann & Kothschild, were to apply on the five dollars, and if made before September 1, 1878, were to bear interest. This contract did not cover Norway or any but common white pine. In February, 1878, or perhaps in January, Ensley quit, having cut and skidded 3,769,665 feet, of which 2,200,-000 were banked. On this he had been slightly over-paid,, receiving in all $6,006.

On the twenty-third day of February, 1878, Kroll sold and conveyed to O. & E. Ten Eyck all his right, title, and interest in a lot of white pine saw-logs then being put into the Tittabawassee river under the Ensley contract, marked “J. P. K,” These “ J. P. K.” logs were small logs.

In the spring or summer of 1878 Kroll executed a contract, which has been prominent in both of the former rec~ *273 ords as well as in this, inasmuch as he claims it was inoperative. It is an absolute conveyance of one-half of all the pine timber standing or being on section 12, and on five 40-acre tracts on section 11, and all the logs and timber cut on those lands that season, for $1,500 ; and it was provided that, inasmuch as Kroll was somewhat indebted on the purchase, the balance due from him might be paid from the proceeds of sale of the timber.

In this same contract Kroll agreed to cut, haul, mark, and deliver in the boom of the Tittabawassee Boom Company, all the logs thereby sold, and all cut, or to be cut, on the N. 4 of section 13, and the N. E. £ of section 14, and to be paid $2.75 a thousand, except about 2,000,000 feet put in by Ensley, for which he was to be paid $2.G0. All rent and charges for banking-ground were to be divided, and paid by each party, and the same as to boomage charges, unless paid by purchasers. Eor settlement purposes the scale on sale to third parties, or if not sold the scale under rope by some competent disinterested party, was to govern.

At this time C. & E. Ten Eyck appear, from these papers, to have owned absolutely the lot of Ensley “ J. P. K.” logs cut by Ensley up to February, 1878, from sections 13 and 14. They had a contract to purchase the rest of the white pine common logs cut by Ensley, at five dollars, on 13 and 14; and by this undated contract they owned an undivided half of the logs on and from 11 and 12, subject to $2.75 a thousand ; and were to pay on their former purchase of Ensley logs $2.60 a thousand for services, including delivery in the boom.

Things stood in this way, so far as the contracts show, in November, 1878, when the contract now sued upon was made. By this contract an agreement was made to furnish, at five dollars a thousand, 2,000,000 feet of white pine common logs, of a size to exceed 14 inches at the smaller end, which were to be cut from sections 12, 13, and 14. Of those claimed to have been cut. there were about half a million from section 12.

So far as these logs were to come from 13 and 14, it is entirely consistent with all the previous contracts. And, inas *274 much as Kroll owned an undivided half of the timber on section 12, there was, so far as we can see, nothing repugnant as to that. Beyond that undivided interest, he was ■entitled to pay, for cutting and delivering at the boom, a sum which considerably exceeded the value of the logs themselves ■on the ground, as fixed by any of these arrangements. There is no legal reason why these contracts may not all stand ■together.

A point -was urged, both on the trial below and in this 'Court, to the effect that Ten Eyck did not take any action under the undated contract; and that although it was found in his possession, and, as we held previously, must be presumed to have been delivered and accepted, yet it could not become practically operative without some further action by him.

This contract was an absolute sale of the undivided half of the timber cut and uncut on sections 11 and 12, whether large or small, white or Norway, for $1,500. All of this was to be banked and boomed at agreed rates. But the contract expressly contemplated that sales would be made in the boom, and that the unpaid purchase money due from Kroll might be paid out of the proceeds. There is nothing contemplating that Ten Eyck was to make sales any more than Kroll, if at all; and there can be no doubt that if Kroll made sales, he must account for. them. There could be no call for action by Ten Eyck until in arrears to Kroll for services, and lie could not be in arrears if Kroll had funds belonging to him.

The principal controversy arose out of various matters which, it was claimed, were inconsistent with the rights which Ten Eyck would have had if full force should be given to the transfers of title under which he apparently held rights. These do not all appear to have been treated alike below, and should be, to some extent, kept separate.

It must be considered, in the outset, that every presumption must stand in favor of the full efficacy of these documents, until overthrown ; and it must also be assumed that they can only be impeached by the conduct of Ten Eyck him *275 self, and that Kroll is not a competent witness as to matters between himself and Ten Eyck upon which Ten Eyck if living could have testified himself.

The circuit court allowed the jury to consider whether the -contract of February, 1878, whereby certain logs were transferred to Ten Eyck, was not given by way of security collateral to the guaranty to Ensley. We have found no testimony in the record which in any way tends to support such ■a theory. So far as anything appears on the subject, Ensley was already paid ; but, whether he was or not, the case does not show anything, which we have been able to discover, which would authorize this transfer to be treated as anything else than a transfer in fact.

Neither have we discovered anything to authorize the court below to lay any stress oh the alleged failure of Ten Eyck to advance money under the undated contract. As ■already suggested, it called for- no advances, and required no payment under any circumstances until logs should be delivered, and charges not otherwise provided for. Neither did it require any action on Ten Eyck’s part in the management of the business, and the charges on both these points were, we think, erroneous.

Testimony was given by one Bartow of statements of Ten Eyck which, it was claimed, referred to the timber covered by the undated contract, and which, if so referring, had some tendency to dispute the existence-of any claim under that contract; and, in connection with these statements, there was proof of a mortgage given by Kroll to Mr. Hoyt, taken, as claimed, on the faith of these representations.

We think this testimony was admissible for the purpose mentioned. While not legally conclusive, it was entitled to consideration. Some portions of it were, perhaps, open to objection as not sufficiently distinguishing between Ten Eyck’s and Kroll’s conversation, and it was not competent to show for what purpose Bartow went to see Ten Eyck, unless so far as it was explained to Ten Eyck ; but the subject itself was pertinent, and so was a considerable part of the testimony.

*276 Similar considerations apply to the correspondence and dealings concerning the mortgage to Mr. Lockwood. That testimony was admissible as having some weight circumstantially in the same direction.

Some testimony was received from Mr. Kroll concerning the delivery of logs, of which he had no personal knowledge. The court seems to have received it on a statement that such knowledge would be shown; but, as he was then on the stand, that was the proper time to show it. It was also-incompetent to allow Kroll to testify why he wrote certain letters to Ten Eyck. This could only be competent" if brought home to Ten Eyck’s knowledge, and upon matters so known Kroll was not competent.

The same considerations apply to Kroll’s testimony about not seeing the contract after he signed it, except in Mr. "Wheeler’s hands, and what took place at that time.- The direct bearing of so much of -this as is pertinent at all was to impeach a paper by contradicting presumptions, on a matter in Ten Eyck’s knowledge as well as Kroll’s; and, in reference to this contract, we think the defendant was right in claiming that, if title once passed under this contract to Ten Eyck, it could not get out of him without some act of release or re-transfer. The real controversy here must have been whether or not the possession of the paper by Ten Eyck was by virtue of an effective delivery, or in some other way.

We think the evidence of scaling was not incompetent. From the nature of the business it cannot always be possible-to show more than was shown here : Smith v. Kelly, 43 Mich. 390 .

The remarks of counsel concerning the books, made in the summing up, were outside of any proper issue for the jury,, and not authorized to be allowed to influence them. The court below took this view correctly.

We have referred to all the material points which were discussed on the argument, and think there was error in the particulars which we have specified. The judgment must, be reversed, with costs, and a new trial granted.

The other Justices concurred.