find what they might regard as reasonable, was unauthorized and improper. We make no comments on the other features of the case, which have come to a considerable extent from the stipulations of successive officers, and the peculiar condition of the record. The judgment must be reversed, with costs of both courts. No new trial can be granted, as the case is not one proper to be tried. The other Justices concurred. EDWARD R. GRICE AND CHARLES GRICE V. ORANGE NOBLE, Sawing contract-Measurement of lumber thereunder-Evidence of same— the debt of another. 1. A sawing contract provided "that the sawing of lumber, thereunder, was to be paid for in actual board measure; that if lumber was inspected, before shipment, the inspector's scale was to be taken, but if not, it was to be scaled by some competent person, before shipment, or when being loaded on the cars." Defendants shipped about one-half of the lumber while the sawing was being done, and measured the same as shipped. After the completion of the contract, plaintiffs requested defendants to finish the scale, but they declined to do so until they shipped the balance of the lumber. Plaintiffs thereupon brought suit for the saw bill, and on the trial, one of the plaintiffs was allowed to testify to the measurement, made by him, in the mill, as the boards came from the saw, and he was corroborated by the men who worked on the edger, and who assisted in such measurement and in keeping tally of the same. This testimony was objected to by defendants, as not tending to prove the scale called for by the contract, they claiming that plaintiffs should have called upon them for their scale, or furnished evidence of it, and on their refusal to scale the balance of the lumber, should have procured some competent person," under the contract, and made such scale before bringing suit. Held, that defendants, having put it out of the power of plaintiffs to scale the lumber sold, could not insist on a scale of the balance; 59 515 62 379 59 515 66 700 that there was no evidence that Grice and the edger men were not competent persons, or that their tally was not an ordinarily correct one; that defendants could not be harmed by it, having their scale in their possession, and that they were as much bound to scale the balance of the lumber as the plaintiffs. Held, further, that their action justified a recovery by plaintiffs, under their mill scale if made by competent persons. 2. Where a contract provided for the manufacture of lumber, "in a good and workman-like manner," without reference to any particular kind of mill, it was error to admit testimony "that portable mills were not expected to manufacture as good lumber as stationary ones," and to instruct the jury, that, "if plaintiffs used reasonably good machinery, as compared with the machinery generally used in doing similar jobs at that locality, and in the surrounding lumbering country, this would be sufficient, as far as machinery was concerned." 3. A man cannot be charged with the debt of another, or u.ade responsible for the goods he may afterwards obtain, by his mere silence, or failure to object when notified that such goods will be charged to him. Error to Huron. (Wixson, J.) Argued January 22, 1886. Decided February 3, 1886. Assumpsit. Defendants bring error. Reversed. The facts are stated in the opinion. Wheeler & McKnight and James H. Hall, for appellants. Brief mainly confined to a discussion of the facts. In regard to liability of plaintiffs for goods sold and delivered to Rapson, appellants' counsel cite: McClenkan v. McMil lan, 6 Penn. St. 366, in support of the proposition that "silence does give consent, and it is for the jury, weighing all the facts and circumstances, to say whether there was such consent as would bind plaintiffs." Winsor & Snover and W. T. Mitchell, for plaintiffs: Defendants, by shipping the lumber before being scaled by a scaler agreed upon, and by refusing to scale balance, have deliberately put it out of the power of either party to have all of the lumber scaled by such a scaler, and plaintiffs' testimony, as to the mill scale, was admissible: McLennan v. McDermid, 52 Mich. 468. An unprofessional log-scaler can testify to his scale, and the weight of the evidence is for the jury Busch v. Kilborne, 40 Mich. 297. Contracts cannot arise from the action of one party alone: 1 Pars. on Contracts, page 475; Barry v. Davis, 33 Mich. 515; Thornton v. Sturgis, 38 Mich. 639; Ahearn v. Ayres, Ib. 692. MORSE, J. Plaintiffs sued defendants in assumpsit, filing a declaration upon the common counts, under which they presented a bill of particulars as follows: "To sawing 502,300 feet of lumber at $2.50 per M., under contract between E. R. Grice & Bro. and Noble, Cooper & Creevy, which contract bears date April 5, 1884, $1,255.75," The defendants pleaded the general issue, and gave notice that they would prove, under such issue, upon the trial, that the work was done under a certain contract, (setting it out ;) and that, while defendants had fulfilled their contract, the plaintiffs had failed to do so in several particulars, to-wit: (1.) They did not "slab the logs as light as possible." (2.) They did not commence sawing for a long time after the date agreed upon in the contract. (3.) They sawed for other parties, without the consent of defendants. (4.) They did not manufacture the lumber in a good and workman-like manner, and did not furnish the proper tools and machinery for manufacturing according to the contract. (5.) They did not saw the lumber as directed by the defendants, thereby violating the contract. And asking a recoupment for damages occasioned by such alleged non-fulfillment of the contract, in the sum of $1,000. Defendants also gave notice of set-off, and filed a bill of particulars of the same, among which was a claim for a bill of goods furnished one Walter Rapson, who was in the employ of plaintiffs. Upon the issue thus formed, the case went to the jury, who returned a verdict for the plaintiffs in the sum of $829.75. Over thirty assignments of error are made in the record, but in disposing of them we shall follow the argument of defendants' counsel, who grouped them under three general heads. The contract between the parties was as follows: "This contract, made this fifth day of April, A. D. 1884, by and between E. R. Grice & Bro., of Bridgehampton, Sanilac county, Michigan, of the first part, and Noble, Cooper & Creevy, of Port Austin, Michigan, of the second part, witnesseth: The said E. R. Grice & Bro., of the first part, agree to saw the logs belonging to the said parties of the second part now landed at the Walter Rapson farm, in the township of Lincoln, on the town line between Verona and Lincoln townships, Huron county, Michigan, and amounting to about six hundred thousand feet of lumber. The The said lumber is to be manufactured in a good and workman-like manner, the said parties of the first part agreeing to use a good edger in the manufacture of said lumber, and to butt off ends and split boards and plank (or lumber) when it is required in order to make it more valuable. The parties of the first part agree to saw the said lumber into such thicknesses and sizes as the parties of the second part may direct, but not less than one inch in thickness. The said parties of the first part agree to commence sawing the said logs in about a week from date, and to continue to saw them until sawed up, and not to saw lumber for other parties unless consented to by the parties of the second part. sawing of said lumber is not to be paid for in log measure, but in actual board measure; and if the lumber is to be inspected before being shipped, the inspector's scale is to be taken, but if not inspected before shipped it is to be scaled by some competent person, before being shipped, or when loading on the cars. The said parties of the first part are to take the logs where they are, and deliver the lumber alongside of a switch to be built on the Port Huron & Northwestern Railroad, piled up with cross-pieces. Whenever the machinery should get out of order, and bad manufacturing result from it, or whenever bad manufacturing occurs in any way, the party of the second part reserves the right to stop the parties of the first part from manufacturing. The party of the first part agrees to slab the logs as light as possible. The party of the second part agree to pay the said party of the first part, for the work above mentioned, the sum of two dollars and fifty cents per thousand feet, as above stated, in the following manner: One dollar and fifty cents per thousand feet on the expiration of the first month's sawing on said logs; on the expiration of the second months sawing they are to have fifty cents per thousand feet more on the first month's sawing, and two dollars per thousand feet on the second month's sawing; and the balance when the job is completed." The first three assignments relate to the admission of plaintiffs' testimony as to the amount of lumber sawed. The measurement of the lumber, under the contract, was to be actual board measure, and not log measure. If inspected before shipping, the inspector's scale was to be taken; but if not, it was to be scaled by some competent person before. being shipped, or when loaded upon the cars. It appears from the record that defendants were shipping the lumber while the sawing was going on, and defendants measured the same as they shipped it. It was claimed on the part of the plaintiffs that, after the job was completed, they asked defendants to finish the scale, and they said they could not do it at present, but would in a short time. They put plaintiffs off in this way once or twice, and finally said. they would not scale it until they shipped it. The plaintiffs told them they had waited long enough, and would have to sue them. Defendants replied that it would take longer to get the money in that event than plaintiffs thought, but at the time set up no claim that it was the duty of the plaintiffs to have any further scale or measurement made. Defendants had scaled and shipped about one-half the lumber. The plaintiffs thereupon brought suit, and one of them, Charles Grice, was allowed, against objection, to testify to the measure made by him in the mill as the boards came from the saw, the witness scaling the inside boards, and the edger-man scaling the boards that went to the edger, putting the amount down on a tally-board, which was added to witness' tally, and put down in his book nearly every night in the week; sometimes, however, running two or three nights before a transfer from tally-board to the book would be made. James Gordon, Charles Berget, and Jesse Tarzwell, the men who worked on the edger, gave testimony as to their tally corroborating Grice. This evidence was objected to because it was not the scale called for by the contract, and a |
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