Sovereign v. Mosher

Grant, J. Plaintiff purchased of the Jackson, Lansing & Saginaw Railroad Company all the pine timber standing on certain lands described in the agreement. The only clause of this contract necessary to mention is that by which he agreed to pay and discharge all taxes and assessments imposed upon the land from and after October 7, 1886, until the timber was removed, or the time limited for removing it had expired. The contract was dated October 7, 1886, and two days thereafter plaintiff sold and assigned all his interest therein to the defendants. At the same time plaintiff and defendants entered into a written contract, by which he agreed to cut and deliver to the defendants the pine timber upon said lands at agreed prices. The only clause in this contract important to mention is that by which they agreed that the logs should be scaled by a competent scaler, to be mutually agreed upon by them. 1. One Alnoch did the scaling. The defendants’ testimony tended to show that he was the scaler agreed upon. The plaintiff’s testimony tended to show that he made objections to the employment of Mr. Alnoch, and refused to be bound by his scale unless it was satisfactory to him. Under the evidence this became a question of fact for the jury, and the court correctly charged the jury that, if he .was the scaler agreed upon, his scale was binding, but, if not, then the scales made by others were competent. Proof, therefore, of other scales was properly admitted. 2. A witness by the name of Reynolds testified to the scale made by him and one O’Malley. He and O’Malley together made the scale in the following manner: The logs were piled upon skid-ways. Reynolds was at one end of the logs and O’Malley at the other, Reynolds taking the measurements at one end and O’Malley at the other. O’Malley called off to Reynolds the measurements he made, and any defects that were apparent to him. Reyn [39] olds then made his measurements, relying upon the correctness of the measurements and defects stated by O’Malley. O’Malley was not produced as a witness, nor any reason given for his absence. The scale of Reynolds, under these circumstances, was incompetent. It was the duty of plaintiff to produce O’Malley as a witness if it were in his power to do so. It will not do to say that Reynolds’ testimony was admissible for what it was worth. It was worthless unless O’Malley made accurate measurements, and correctly reported defects. This no one could testify to except O’Malley The admission of the testimony was error. 3. The circuit judge charged the jury to reject the taxes on the land for the year 1887 because they had not attached to the land at the time the defendants paid them, and that Sovereign was not bound to pay them. We think this was error. By the contract plaintiff was obligated to pay the taxes until the timber was removed or the contract terminated, neither of which had taken place. Defendants paid the taxes for the years 1886 and 1887. No objection appears to have been made to the payment by defendants of the tax of 1886, and to its being a proper offset against plaintiff’s demand. The taxes of both years are upon the same basis. We find no other error in the record, but for the errors above mentioned judgment is reversed, with costs, and a, new trial ordered. Ohampein, C. J., McGrath and Long, JJ., concurred- Morse, J., took no part in the decision.