The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-09-03

Surt for the western Distrct OF Michigan.-Mr JUS
tice Hunt delivered the opinion OF the Cour-Freder
ick B. Leonard OF whom the defendants in error
the executors brought his action in the Circuit Court
claiming TO from the Jennisons, the plaintiffs in
error sos 600 the alleged value Of certain sawed lum
Der taken by them from his possession The cause was
submitted the Court for trial without the nterven-
ton of a jury The taking Of the lumber was proved
and its value found to be SIT 1873 which was after
ward reduced 10 81. 461 for which judgment was
ordered for the plaintiffs
The trial had before the Court without the inter
vention ola jury by virtue Of the of March 1865
Us Stat 50l and the record contains special finding
OF facts Leonard and Others under the style of the
Bedon Lumber Company, were the owners Of certain
lands in Michigan, respecting which con
sni Edward Sip'' Ge 1885, yas m'@ 6r
$27 000 TO be paid 10 them, they agreed 10 sell and
convey to Cole the lands described Cole agreed pay
for them the sum OF S27 900, as follows viz $50 900
with interest in year the same sum with interest
in two years the balance Of 81 900 with interest at the
every 900 feet of timber and removed Cole should
pay monthly the sum Of So and he agreed to cut and
remove at least 100000 of feet every year In the
event That the monthly payments fell short ofthe annual
payment Cole was to make up the deficiency prior TO
June H. 1857 Cole executed to the Jennisons the par
ties TO this suit bill Of sale of 600 600 feet of the
logs said premises and three chatte mortgages
upon the same to secure them for advances made TO
him. The Jennsons, not being paid the amounts Sc
cured by their mortgages, entered upon the lands In
question early in July, 1867, and took possession OF
the timber cut by Cole, and not heretofore re-
On the Goth of that month they entered into
agreement by which they recognized the interest
Of Leonard in the property and undertook TO pay what
due the contract to Leonard, and what should
become due so long as they ''operatedN under said
chattel mortgage dispute soon arose as TO the
amount thus due and on the 4th of September 1867,
the Jennsons refused further 'operate the land
but abandoned the land and have not since removed
any timber thereirom Leonard then entered into pos
session of the lands for the alleged breach
OF contract by the non-payment Of $5,2S2 70
then due and unpaid the Cole contract, and
took possession of all the down timber not removed,
amounting 10 l. 1872 600 feet, board measure AT
pense of 1869 81 this timber transported by
Leonard to mill near the mouth of the Grand River,
sawed into lumber and placed on vessels Tor the
Chicago market without interference with his posses
the vessels and about to be sent to Chicago, the
Jennisons seized the lumber sold and converted
it TO their own use claiming that the
logs from which it was manufactured were
from Cole herenbefore described 1t is for this TAX
ing the action Is brought There but single question
Of law in the case viz Are the facts found sufficient
support the Judgments This question may be affected
by greater less number of considerations but IL Is
the sole question Looking at the circumstances that
Cole had refused to perform and had surrendered aud
assigned all his interest in the contract and the timber
that the JennsOns had ceased their operations and had
into possession of the land and the timber cut,
and had caused the same to be removed and
sawed into boards that the right of the Jennisons
tended only to such timber had been cut where the
mortgage executed that there is evidence that
the timber in question had then been cut. ID seems
sufficiently plain only that the Leonards the
of and lawfully IN possession of the timber and
lumber in question: but that their right assented to
by all parties who in condition to question it,
The JennisOns not only failed to show any title to the
lumber at any time, but voluntarily abandoned what
ever interest they might be supposed to have had
judgment affirmed