1885, Smith & Guilford were bound to deliver upon the cars of the Michigan Central Railroad at Ogemaw village switch all the merchantable white pine on sections twenty-one and twenty-eight, town twenty-two north, range one east, that defendant should deem proper for the Saginaw market. If, from the evidence, you find that Smith & Guilford or plaintiffs delivered, among the white pine logs that defendant deemed proper for the Saginaw market, against the protest of the defendant, coarse and cull logs that defendant did not deem proper for the Saginaw market, the defendant is entitled to recover such damages as he sustained by reason of such default." Error is assigned upon the refusal of the court to give this request in charge to the jury specifically. The court, in its general charge to the jury, fully covered this question, and, as we think, very fairly. Among other things in relation to this part of the case, the court stated to the jury: "Under this contract both parties had a duty to perform. Mr. Plummer would have no right to come in here and say: 'I deem certain logs proper for the Saginaw market and certain other logs not proper for that market, but these plaintiffs delivered logs that I deem not suitable for that market,' and claim damages unless he shows that he had indicated to them in some proper manner what logs he did deem suitable for that market. * * If these

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men, in violation of their contract and their good judgment, and the judgment which they ought to have applied to the distinction which he pointed out to them as their guide, if they disregarded it, and sent logs to Saginaw that they had reason to suppose Mr. Plummer did not deem proper for that market, then they are liable for the consequences and the damages that resulted to him from securing that kind of logs there. But if he left it to the judgment of these men, and these men exercised that judgment fairly and honestly, he must be bound by that judgment. But if they frequently disregarded his directions, and did put timber upon the cars and send it to Saginaw that they knew was not suitable for that market, and knew that he deemed unsuitable, then they ought to pay damages." It is clear by the contract that defendant was required to designate the logs which were to go to Saginaw. He should do it in such manner as it would be profitable for plaintiffs to work by. If he left it to plaintiffs' judgment, or to the judgment of the scaler or foreman, and gave only a general description, so that it involved judgment, and that judgment was fairly exercised, he could not complain, and we think this part of the charge fully covered all that defendant had any right to ask. Defendant further requested the court to charge: "If you find from the evidence that plaintiffs' assignors did not keep defendant's mill at Ogemaw village constantly supplied with pine logs for sawing purposes, the defendant is entitled to all damages sustained by him by reason of such failure." This the court also refused to give. The claim made by the notice under his plea does not set forth any particular bills lost. His claim is that he might have obtained orders for special bills. He does not name a single bill which he thus failed to get. The claim is presented in no other than the most speculative way, and does not present a fact to be tried as to damages. The court instructed the jury upon this question, and we find no error in those instructions. The case in principle falls directly within the ruling of this court in Allis v. McLean, 48 Mich. 428, 12 N. W. Rep. 640. Defendant further requested the court to charge the jury: "Keeping logs of particular lengths by themselves in the contract of July 17, 1885, means that logs of different lengths should be placed on skid-ways at defendant's mill, each length separate from every other length. As an illustration, all logs twelve feet in length together, all logs fourteen feet in length together, and so on throughout the various lengths of logs under the contract. If they were not delivered, so that logs of particular lengths were kept by themselves, the defendant is entitled to recover damages by reason of this breach of the contract." The contention of the defendant is that the random logs, that is logs of different lengths, though

cut for bill stuff, should have been separated by their lengths at the mill, and put on different skid-ways at the mill, and because that was not done the defendant has suffered damages which he is entitled to recover. The contract cannot be so construed, and it is apparent from the conduct of the defendant and his employes that no such construction was thought of at and during the time the work was in progress. The logs cut varied in length from 12 to 36 feet, and it would have required 13 different skid-ways at the mill to place separately these different lengths of logs. It was the duty of defendant to provide these skid-ways, and as appears by the evidence only two were provided for long timbers, and defendant's foreman directed them placed on these skidways. The language of the contract itself does not bear any such construction. The language in the contract "keeping logs of particular lengths by themselves" was employed to designate a class, and conveys the same idea as the words "special lengths." If the intent had been to keep each length of logs by itself, that language would have been used. It is an idea easy to express. The actual business of lumbering about which the contract was made does in fact make use of two general classes, viz., the usual or customary lengths, which are from 12 to 22 feet, and cut so as to save timber, and lengths which are cut with reference to particular bills or orders. There can be no doubt that it was intended by the contract that the logs for bill stuff should be kept by themselves and the other classes of logs by themselves. This was the interpretation given by the court to the contract, and we think it is the true construction.

Some contention was had upon the trial, and considerable evidence introduced by each party, under a claim made by the plaintiffs that the defendant, in cutting the timber, did not do so in the usual and ordinary way, but went from place to place so that plaintiffs were put to large expense in hauling. There is no provision in the contract as to the manner in which the plaintiffs should do the work except that it should be done in a workman-like manner, and keep the mill supplied. The defendant was to do the cutting in such manner as to mutually assist the plaintiffs "in doing the work and keeping the mill supplied." Under these terms it was no matter how fast logs were cut, or what kinds. The plaintiffs fulfilled by keeping the mill supplied with every kind of logs, and might elect for themselves which kind to load first and from what points to work to the best advantage for himself. The defendant claimed the right to skip about, cut here and there, and compel hauling in the same way. The plaintiffs denied this, and claimed that it added to the expense in hauling. The contract was made in reference to the work of logging as actually and customarily done, unless it could be otherwise shown by competent evidence. The plaintiffs gave evidence tending to show the custom was to cut clean. The defendant gave evidence tending to show an understanding, before and when the contract was made, to cut as he did. The plaintiffs gave evidence in rebuttal, and the whole question was submitted to the jury by the court in its general charge, and gave the defendant the benefit of this understanding if they so found. We think the matter was fully and fairly submitted to the jury, and the defendant has no reason to complain of this part of the case. The defendant requested the court to charge: "If you find from the evidence that defendant, by order of Guilford, paid to Angus Bedour the sum of $615.32 for work done by him for Guilford under verbal contract, between defendaut and Guilford, the defendant is entitled to credit for such amount as payment." The court refused this request, but charged the jury, substantially: "Here is an amount claimed to have been paid by Mr. Plummer to Bedour for skidding a quantity of logs that Mr. Guilford was under contract to get out. The claim is for payment made by defendant for loading these logs. It is conceded that Mr. Plummer did pay for the skidding and hauling. The only dispute is whether he was authorized to pay it. You may have no sort of doubt that this payment was

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made by Mr. Plummer, who had no sort of interest in paying it to Mr. Bedour, because he understood his authority and the direction. Mr. Bedour may have received it with that understanding, and it may be supposed it is suggested that Mr. Plummer would not have paid this man Bedour unless he thought and believed he was authorized by Guilford to do so. And Guilford's good faith is attested in the same way, to a certain extent. He testified that he paid Bedour, and Bedour received from him some four hundred and ninetyfour dollars of this same amount. What you may think of Bedour for receiving from these two parties double payment for his labor is another question. *" The court, in another portion of its charge, stated to the jury: "Assuming that these witnesses are equally honest, and perhaps you may be satisfied they are, it indicates that there was an entire misapprehension between the parties." It appears from the record that Plummer and Bedour testitied that Guilford authorized this payment, while Guilford denied giving Plummer any such authority. Plummer testified that he paid Bedour $615.32 for loading the logs, and that that amount included nothing but for logs loaded under the contract, and that the payment was directed by Guilford in the presence of Bedour. Mr. Bedour testified that Plummer was at Ogemaw, and that he went down with him to West Branch. That the conductor held the train at his request. He went to the hotel, and got Guilford to come down to the train, and talk the matter over with Plummer. That Plummer was to pay him. Mr. Plummer asked Guilford if he should pay Bedour for the work, and he said, "Yes." Mr. Guilford denied making any such statement, or ever authorizing Plummer to pay for loading those logs. The issue was thus made between the parties, and it was a question of fact for the determination of the jury. Defendant's claim is that the court voluntarily passed upon one of the most important questions of fact in the case, and clearly informed the jury what his opinion of the testimony upon the payment was. That this statement of the court was a finding of fact that, conceding both parties to be equally honest, they misapprehended each other. Another claim is also made that defendant's case was prejudiced by the remarks of the court upon the witness Bedour in that the court said, "What you may think of Bedour for receiving from these two parties double payment for his labor is another question," as Bedour had testified that he had done other work for Guilford, and that this $615.32 included no part of the other work. Mr. Bedour testified: "This work I did for Mr. Guilford was on that deal, for sections 10 and 11. I had a separate transaction with Mr. Guilford, apart from that, but this was all done on sections 10 and 11. The payments that I have received from Mr. Guilford and Mr. Plummer pay me in full for all the work I did for Guilford on sections 10 and 11. It does not overpay me." It is evident that Bedour's testimony was important upon this $615.32 item. Plummer claimed to have paid it under authority from Guilford, and claimed a credit for it on this account. Guilford denied giving any such authority to Plummer, and further insisted that he had paid that item for the identical work to Bedour himself. Bedour was called by defendant, and gave testimony squarely contradictory to Guilford, and claiming that, while Guilford paid him the $615.32, it was for other work done for him, and that what he received from Guilford and Plummer only balanced his claim, and he was not overpaid. The remarks of the court "What you may think of Bedour for receiving from these two parties double payment for his labor" would naturally and necessarily have great weight with the jury. It was an expression of doubt by the court as to the honesty of Bedour for receiving double pay. It must have made an impression upon the minds of the jury, which they would carry into the jury-room, and where the case was so evenly balanced between Plummer and Guilford, who so squarely contradicted each other upon the question of the authority for the payment. Bedour's testimony was of much moment and might be decisive of the question. We think this remark prejudiced the

defendant's case upon this $615.32 item. We think, also, the court was in error in charging the jury that there was an entire misapprehension between the parties upon this question of authority to Plummer to pay the $615.32. The testimony was direct and positive, and plainly irreconcilable, and it was a question of fact for the jury to determine which was right. If Plummer and Bedour were right in their version of it, then Plummer was entitled to the credit, and if Guilford was correct, the credit should not have been allowed. In view of the issue made in the case, by the pleading, the court allowed great latitude in the examination of witnesses. We think this was proper, and we find no error in the record upon the reception or rejection of evidence. The case was fully tried and submitted to the jury under a very full and fair charge by the court. We find no error in the construction given to the contract by the court. The only error we find in the case relates to this $615.32 item, and in the charge of the court upon that subject we think there was error. The judgment of the court below must be reversed, with costs, and a new trial ordered.

SHERWOOD, C. J., and CHAMPLIN and MORSE, JJ., concurred. CAMPBELL, J., did not sit.

AYRES et al. v. HUBBARD.

(Supreme Court of Michigan. October 19, 1888.)

1. PRINCIPAL AND AGENT-DECLARATIONS OF AGENT-EVIDEnce.

The declaration of an employe under contract to cut and haul timber from defendant's land that he had by mistake cut timber on plaintiff's land, and delivered it to defendant, the employe still being engaged in lumbering for defendant, is admissible in an action to recover the value of the timber.

Evidence that defendant's agent also cut timber on the land of another person near by, during the same operations, for which defendant had paid, is also admissible. 8. LIMITATION OF ACTIONS-PLEADING the Statute-Burden of Proof.

Upon the issue of the statute of limitations the burden is upon the plaintiff to show that the cause of action accrued within the statutory time.

Error to circuit court, Huron county; WATSON BEACH, Judge.

Trover by Frederick S. Ayres, James S. Ayres, and Ebenezer R. Ayres, against Langdon Hubbard, to recover the value of timber cut on plaintiffs' land and used by defendant.

James H. Hall, (Isaac Marston, of counsel,) for plaintiff in error. Winsor & Snover, for defendant in error.

LONG, J. This cause has once been heard in this court, and is reported in 57 Mich. 322, 23 N. W. Rep. 829. On that trial plaintiffs prevailed, and the defendant brought the case to this court by writ of error, where it was reversed and new trial ordered. The only question then involved was the proper measure of damages, and this court then held "that there was nothing in the case indicating any willful or negligent trespass on the part of defendant or the company's employes. The general rule of damages is the value of the property lost under such circumstances, at the time and place of conversion. Each case, however, must necessarily, to a very great extent, depend upon its own peculiar circumstances and equities." The case was again tried in the circuit court for Huron county, and the defendant prevailed. Plaintiffs bring the case to this court by writ of error. Plaintiffs were, during the transactions involved in this case, lumbermen and mill-owners in Huron county. The defendant was a member of the firm of R. B. Hubbard & Co. during this time, also doing a lumber business in said county. This firm, in the month of December, 1874, let a contract to one John Montgomery to cut logs and timber during that winter on their lands in Huron county, and haul and put

the same afloat in Willow creek for the agreed price of $3.50 per thousand feet. Montgomery proceeded under his contract, and cut, hauled, and placed in the creek a large quantity of logs. It is claimed that neither the company, of which defendant was a member, nor the defendant knew that logs were taken from any other than lands of the defendant. On August 14, 1880, this suit was brought, in trover, to recover for a quantity of timber claimed to have been cut by Montgomery from plaintiffs' lands, while he was so lumbering for R. B. Hubbard & Co. in the winter of 1874-75. The plaintiffs' lands were 160 acres on section 15, town 17 N., range 13 E. One Luther Ripley owned lands immediately adjoining plaintiffs'. Defendant owned other lands near, but not adjoining, these. These lands of defendant were those lumbered by Montgomery in the winter of 1874-75. The logs taken from these lands by Montgomery were put in Willow creek, and run from there to Huron City, where they were sawed. It is admitted that defendant had the avails of all these logs so put into Willow creek by Montgomery. Plaintiffs claim that among the logs put by Montgomery into Willow creek, and delivered over to the defendant, was a large quantity of logs taken by Montgomery from their lands on section 15 during that winter. This action is brought to recover the value of such logs. The declaration is in the ordinary form in trover. The plea is the general issue and the statute of limitations.

Plaintiffs claim that the action was brought as soon as the trespass and loss of timber was discovered. Defendant denies the taking of any timber from plaintiffs' lands; alleges that Montgomery never had any direction to cut from any but defendant's land, and if he did so cut it was wholly unknown to defendant. Defendant also claims that if any timber had been cut from plaintiffs' lands, it was some time prior to the winter of 1874-75; that these timbers were cut by one Thompson, who was lumbering along-side of these lands in the winter of 1868-69. It was claimed on the trial by the plaintiffs that, while so lumbering for the defendant, Montgomery also trespassed on Ripley's lands as well as on plaintiffs', and cut and delivered to the defendant a quantity of timber therefrom, and that for this trespass on Ripley's land defendant afterwards settled with Ripley; that part of Ripley's land cut over was contiguous to plaintiffs'; and that plaintiffs afterwards discovered that a quantity of their timber had been cut just over the line between their lands and Ripley's. Ripley was called as a witness for plaintiffs, and testified that in the fall of 1874 he was on his land, and no timber had been cut, nor, so far as he observed, on the plaintiffs' land, though he was not at that time on plaintiffs' land; that in 1875, going there again, he found timber cut. Plaintiffs then offered to show by Ripley that in the winter of 1874-75 he found Montgomery on this land, and that Montgomery then told him he had cut and delivered to defendant timber from Ripley's and what turned out to be plaintiffs' land. This was excluded by the court, and upon this ruling plaintiffs assign error. Ripley testified further that, upon this statement from Montgomery, he went and saw defendant, and demanded pay for the timber taken, supposing at that time it had all been taken from his land. Defendant accordingly sent a Mr. McFadden, a surveyor, to examine the trespass with Ripley. In this examination they found that part of the timber had been cut from plaintiffs' land; that they estimated the timber cut from Ripley's land, and that defendant afterwards paid him for it. McFadden was also called to the same question, and gave testimony; but on motion of counsel for defendant the court struck out all the estimony relative to the cutting on Ripley's land, and the settlement therefor. At the time this statement was made by Montgomery he was in the employ of defendant, lumbering on his land, and defendant had all the timber taken, whether it came from his own or Ripley's or plaintiffs' lands. Plaintiffs had shown by the witness that he found in the year 1875 certain timber cut on his own and plaintiffs' lands; that Montgomery was lumbering there on defendant's land, near by, for defendant; and that he then and there stated