Lane v. Pere Marquette Boom Co.

Morse, J. The plaintiff, in the year 1882, was engaged in logging certain pine timber owned by him on the Little South Branch of the Pere Marquette river. ' In the spring' he entered into a written contract with the Pere Marquette Boom Company, by which it agreed, for a certain price, 59 cents per thousand feet, to drive his logs to Ludington. — 66 — The contract provided, among other things, as follows: “ Payments to be made as fast as logs are ready for delivery, before delivery, or logs will be stored at owner’s expense. Sworn weekly statements of the amount of logs sawed, of each and every mark, shall be rendered by each mill-owner, from a statement by sworn scaler, to the boom company on the Monday succeeding; the final settlement to be made on the woods scale.” The plaintiff employed a scaler in the woods, who scaled the logs cut and put afloat in the river there. In July, this scaler, at plaintiff’s request, rendered to the boom company a written statement of the logs put in according to his measurement, or woods scale. The amount so ascertained and reported by him was .2,996,144 feet. Lane paid the company in full, upon the basis of this statement. It is admitted that he paid $267.99 — the last payment made by him —under protest, claiming a mistake in the scale. The plaintiff, in February, 1884, brought suit in assumpsit against the defendant, claiming that there was a gross mistake in the woods scale, and that the logs actually put in only amounted to about 2,000,000 feet, and demanding judgment for the amount of money overpaid to defendant by reason of such mistake. The cause was tried before a jury in the Mason county circuit, and verdict and judgment rendered for the plaintiff in the sum of $497.78. The defendant comes to this Court, assigning several errors in the proceedings in the court below. The principal controversy upon the trial seems to have been upon the right of the plaintiff to recover at all, and the settlement of this point will dispose also of most of the errors alleged to have occurred during such trial. It is urged by the counsel for the defendant that the woods scale, under the written agreement,' must govern, in spite of any mistake in the same. Acting upon this theory, upon the trial, objection was made to the proving, by the mill tally-sheets, and the scaler's who made them, the actual amount of the logs as taken out of the boom of the — 67 — defendant; yet in the defendant’s requests to charge, which were given, except the sixth, by the court as requested, the counsel recognized the well-settled principle of the law that payments made under a gross mistake can be. recovered back, if not returned on demand, and only asked -that the. mistake should be proved by clear, positive, and satisfactory evidence. But they insist that the mill tally is not competent evidence to prove the mistake; that the woods scale must control, and a mill tally is not a woods scale, and differs from it materially, for various reasons and in various respects not necessary to mention here; that a woods scale, where the logs are driven down a stream and into a boom, and there remain until sawed, will be from 10 to 15 per cent, greater than a mill tally. We think the evidence was competent. A party is only required to furnish the best evidence in the power of the law and the facts to be obtained. The mistake was not discovered until the logs were sawed. Therefore no new woods scale could be made, and only the mill tally, or a measurement of the lumber, a large portion of which had been sold and shipped away, could determine the magnitude of the mistake and the amount of the discrepancy. There was no objection made to the reliability of the tally. It was in accord with the statements made by the mill-owners who did the sawing, to the boom company, and was substantially admitted to be correct as a mill tally. The court, in his charge to the jury, clearly pointed out why the mill tally would be less than the woods scale, and properly directed them in what manner to ascertain the true scale in the woods, as near as it could possibly be determined under the circumstances. He told the jury that unless they were satisfied that a gross error — a gross mistake — had been, made in the woods- scale, the plaintiff could not recover; and that if the discrepancy between the quantity of logs, as shown by the woods scale and those delivered, was caused by the difference in judgment of the different scalers on account of defects in the quality of the logs, or the circuin — 68 — stances under which the scale was made, then the plaintiff must be bound by the woods scale, and could not recover; that the woods scale must stand and control unless it was clearly and' positively impeached by showing a gross, mistake. Indeed, .his charge was a most fair and impartial one; certainly as favorable, if not more so, than the defendant eould reasonably ask under the law. ■ • Defendant’s sixth request asked the instruction that if, for a fraudulent purpose, the plaintiff caused the woods scale to be falsely reported, then the law would give him no relief against his own fraud and its consequences.' This was properly refused, there being no evidence, as shown by the record, upon which to base it. The. plaintiff declared upon the common counts in assumpsit. It is argued that he cannot, under the facts as claimed by himself, recover on these counts; that the alleged deficiency in the amount of logs delivered constituted a breach of the driving contract, and the declaration should have been special, setting out the contract, averring the breach, and claiming the value of the discrepancy as so many logs not delivered. There is nothing in this claim. The action, under the theory of the plaintiff, and the facts as shown, is based upon a mistake in plaintiff’s own scale, and not upon any failure of defendant to fulfill its contract. It is for money had and received by the defendant, equitably belonging to the plaintiff.1 The defendant put the “ woods scaler,” one J. C. Whitman, upon the stand, to substantiate the correctness of his scale, and- to show that he made the same, and a statement of it to the boom company, by plaintiff’s orders. He was asked, upon cross-examination, if he ever made a report of the amount of logs to Mr. Lane. He answered that he did twice, at Muskegon; that he made these reports at Lane’s request, who wanted to show them to two different parties to whom he was trying to sell the logs; that the reports — 69 — were the same as the one made to the boom company. He was then further asked if Lane did not say to him that he did not see how he could make a report, as he had not done all the scaling. He answered, “Not until after the report was- made.” He was then allowed to testify, against objection, that Lane said “ he didn’t see how I could make a report, or something of that kind.” This may be open to the objection, raised by the defend* ant’s counsel, that it was giving in evidence the statement of’ the plaintiff in his own behalf when it formed no part of the res gestee, but I fail to see how it could have injured the defendant. The scaler admitted he did not scale all the logs himself, and it was also admitted that Lane made at least one payment to the company under protest, ■claiming a mistake in the scale. All this item of - testimony amounted to was a declaration by the plaintiff asserting-these two undisputed facts. Its admission was therefore error without prejudice. It is also claimed, from the facts disclosed upon the trial, that the plaintiff, when he made some of the payments, knew a mistake had been made in the scale, and yet voluntarily paid the whole amount without demur, except the one payment of $267.99, which was paid under protest, as heretofore noted ; and it is contended that no part of the payments voluntarily made, with such knowledge of the mistake, can be recovered, although it was paid under protest and without a sufficient consideration, and we are referred, among other authorities, to McArthur v. Luce, 43 Mich. 435. We do not think the facts in this case bring it within the doctrine there stated, as the payments here were made without full knowledge of the facts or full investigation, and, as it is claimed, under duress of property.' This claim, however, was not made upon the trial, nor does it come within any of the errors assigned in the record ; and this, perhaps, explains the paucity of the record as to the knowledge of Lane when he made the payments. The record is meager, and does not purport to contain all the — 70 — testimony. We cannot, therefore, notice the point, it being raised for the first time in this Court. The judgment is affirmed, with costs. The other Justices concurred. Footnotes [1] See Pierson v. Spaulding, 61 Mich. 94, and note.