McRae v. Garth Lumber Co.

Long, J. Action of replevin. Plaintiff had .verdict and judgment in the court below, finding the title in him to •■such property as was taken on the writ, and a money judgment of $1,427.49 for property described in the writ, •and not found hy the officer. [490] The claim of the plaintiff on the trial was that he cut and delivered into the White Fish river, in the winter of 1892-93, 10,655 white pine logs, and 765 pieces of waney timber, and that such logs and timber were driven down the river by defendant, and put into its boom; that thereafter plaintiff received from the defendant, before commencement of suit, 7,824 of the logs, and all but 61 pieces, of the timber, leaving a balance of logs in defendant’s-possession of 2,831, and the 61 pieces of timber. Demand was made for this balance, when defendant claimed a lien for driving under a contract for 50 cents per thousand feet. Plaintiff denied this contract, but made a tender of [491] 8885, which amounted to 35 cents per thousand. Plaintiff took, under his writ, 2,183 logs and -all the timber, leaving 648 logs unaccounted for, and. for which the money judgment was entered. Under order of the court, on motion for new trial, the plaintiff remitted from this judgment the sum of 8120. The first contention in the court below was that a contract existed between the parties, by which plaintiff agreed to pay 50 cents per thousand feet .for driving the logs. It is conceded that the tender was not sufficient to cover this amount. The plaintiff denies that such a contract was ever made. The court left that question to the jury to determine; but defendant contends that the testimony shows conclusively that such a contract was made, and that the court should so have directed the jury. After a careful examination of the testimony we are satisfied that there was a conflict of evidence on that point, and the court was correct in leaving it to the jury. It is also contended that the court was in error in permitting the jury to find a verdict for the value of the logs not taken under the writ, for the reasons: 1. That there was no evidence showing how many logs came into the possession of the defendant, other than the amount agreed upon as having been sorted. 2. That there was no evidence to show how many logs had been delivered to plaintiff. We think the testimony does show how many logs came into the possession of defendant; at least, the testimony shows how many logs were cut, marked, and put into the river, and it is shown that defendant took possession of them, and ran them, with other logs, to the boom. It is also shown, or such testimony was given from which the jury could estimate, how many .logs were delivered to the plaintiff. The questions presented by this record are mostly such as [492] were settled in the court below by the verdict of the jury under a very full and fair charge. It is claimed, however, that the court should have granted a new trial on newly-discovered evidence. Act No. 134, Laws of 1893, has provided for the manner of review. Among other things, it is provided by that act that there may be incorporated in the bill of exceptions a record of all the proceedings had on the motion for a new trial, including the reasons given by the trial judge in refusing to grant a new trial. Exceptions may be taken, and error assigned on such decision. The reasons of the circuit judge for refusing the new trial are not given. Apparently, the judge was not asked to give his reasons for such refusal. Unless the statute is followed in this regard, this Court cannot review that action. We are satisfied that the case was fairly tried, and we find no error in the record calling for a new trial. The judgment is affirmed. McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.