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tion, and that left merely the question of the amount of damages to be awarded. These involved pain and suffering, and prospective as well as past deprivation of the use of the arm. Such damages are not altogether a matter of mathematical computation, but they are determined by the concensus of opinion of the jury, acting under the direction of the judge. The question of new trial was within the discretion of the court. The judg. ment of the circuit court is affirmed. The other justices concurred.
which it is made, it will not justify a reversal. Among the cases supporting this rule are the following: Rash v. Whitney, 4 Mich. 495; Hoard v. Little, 7 Mich. 468; Young v. Stephens, 9 Mich. 507; Morrissey v. People, 11 Mich. 332; Hollister v. Brown, 19 Mich. 166; Gilbert v. Kennedy, 22 Mich. 118; Sny. der v. Willey, 33 Mich. 490; Campbell v. People, 34 Mich. 351; Ward v. Ward, 37 Mich. 259; Stevens v. Hope, 52 Mich. 69, 17 N. W. 698; Merkle v. Bennington Tp., 68 Mich. 145, 35 N. W. 846; Jennison v. Haire, 29 Mich, 207; Heymes v. Champlin, 52 Mich. 26, 17 N. W. 226; Jochen v. Tibbells, 50 Mich. 33, 14 N. W. 690; Bulen v. Granger, 63 Mich. 311, 29 N. W. 718; Abbott v. Chaffee, 83 Mich. 256, 47 N. W. 216; People v. Moore, 86 Mich. 134, 48 N. W. 693; Hutchinson v. Whitmore, 95 Mich. 592, 55 N. W. 438; Association v. Fisher, 95 Mich. 274, 54 N. W. 759; People v. Durfee, 62 Mich. 491, 29 N. W. 109.
A motion for a new trial was made upon the following grounds: (1) The damages were excessive; (2) the damages are so excessive as to evince passion, prejudice, partiality, or corruption of the jury; (3) the verdict is against the weight of evidence. The court found that the damages were excessive; that they were not so excessive as to evince passion, prejudice, or corruption, and that they do not exist; that the jurors were so moved by sympathy for the plaintiff, and by their common knowledge of the finan. cial ability of the defendant, and their belief of large amounts expended by the defendant for medical expert evidence, as to have awarded a larger amount than they otherwise would have done, and to that extent partiality is found; that the verdict is not contrary to or against the weight of evidence. The order was then made ordering a new trial, unless $6,500 should be remitted from the verdict. Error is assigned upon this order. Counsel argue that $3,500 is excessive damage for a stiff arm; but we cannot say that it is so clearly excessive as to justify our interference upon that ground. We are also of the opinion that making a new trial dependent upon a refusal to remit a portion of the verdict in cases of this kind is a wellsettled practice in this state, where, as in this case, the amount of unliquidated damage is the only question involved. It has always been considered lawful for the trial judge in such a case to set aside a verdict as excessive; and it has been a common practice to grant a portion of the relief asked by requiring a remission of a portion of the verdict as a condition upon which the new trial will be denied. This has always been a matter of discretion, and, where it is not clearly erroneous, the action of the trial court should not be disturbed.
Several other questions are raised, but our investigation of them leads to the conviction that they do not furnish a ground for reversal of the case. We think it unnecessary to discuss them. The jury found a cause of ac
OCONTO CO. v. LUNDQUIST et al. (Supreme Court of Michigan. Jan. 20, 1899.) TRESPASS-REMOVAL OF TIMBER-CONTRACTS-CON
STRUCTION - SALE OP LAND - Bona
Fide PurchASER-INJUNCTION. 1. Complainants had a contract for the removal of timber on land, a portion of which the owner sold under a mistaken belief that the timber had all been removed. The complainants had commenced the removal, and had built camps and logging roads on the land. The purchaser knew that complainants were getting out timber in that region, and had visited the tract purchased, and seen a freshly-cut logging road connecting with the main road of complainants. Held sufficient notice of occupation as to put a reasonably prudent person on inquiry, and hence the purchase was not bona fide.
2. A contract for the cutting of timber granted permission to cut and remove it at any time previous to a stated date, "with privilege of another year if needed to remove timber"; pur. chaser to have no claim or ownership in any timber not removed previous to such date, and all timber remaining on the land at such date to be the property of seller, as if the permit had not be granted. Held, that the purchaser had two years within which to remove the timber
3. Under a contract for the purchase of timber, the purchaser, after the payment of the consideration, began the work. The land was subsequently sold under the mistaken belief that the timber had been removed. The purchase was not bona fide on the part of the vendee, who commenced an action in trespass, under How. Ann. St. c. 272, against the purchaser of the timber, for its removal. Held, that the lat. ter was entitled to an injunction restraining the prosecution of the action of trespass.
Appeal from circuit court, Dickinson county, in chancery; John W. Stone, Judge.
Bill by the Oconto Company against Alfred Lundquist and another to restrain them from the prosecution of an action in trespass against complainant. There was a decree dismissing the complaint, and complainant appeals. Reversed.
Sawyer & Waite, for appellant. Cook & Pelham, for appellees.
HOOKER, J. The Peninsula Iron & Lumber Company, a Wisconsin corporation, owned a large tract of timber land in Michigan, including the 40-acre parcel in question. A co-partnership consisting of James B. and Robert F. Goodman, doing business under the name of James B. Goodman & Co., were the agents of the Peninsula Iron Company, though it does not appear that their authority was in
writing. On October 25, 1894, this firm ex- ed by the appellant to be the following: ecuted and delivered to complainant a writing "First. Did the complainant obtain a title to which was as follows:
the timber mentioned in complainant's Ex"Limited Permit to Cut Timber. No. 665. hibit C, which included the S. E. 14 of the S. Expires June 1, 1895. Land Office of James W. 14 of section 23, township 42 north, of B. Goodman & Co., Chicago. Received of the range 30 west, or such an interest, equitable Oconto Company three thousand six hundred or otherwise, that it could be enforced by a (3,600) dollars, in consideration of which we court of equity? Second. Does the contract of hereby grant to them permission to cut and sale of timber between the Peninsula Iron & remove at any time previous to the first day Lumber Company and the Oconto Company of June, A. D. eighteen hundred and ninety- give the Oconto Company two years in which five (1895), with privilege of another year if to remove the timber? Third. Was the buildneeded to remove timber, all or any part of ing of the camps and roads on the timber land the pine timber now upon the following de- for the purpose of removing the timber purscribed land, in the county of Dickinson and chased by the Oconto Company from the state of Michigan, to wit: [Here follow de- Peninsula Iron & Lumber Company, and the scriptions aggregating 640 acres.) Said pine running of the branch road on to the forty in timber to be cut and removed without de- question, under all the circumstances, such a struction of other merchantable timber upon notice of possession as would put Lundquist said land; and the said Oconto Company shall and Fridstrom on inquiry? Fourth. Has a have no claim or ownership in any of said tim- court of chancery the power to set aside a ber that shall not be removed from said land subsequent deed for value paid, when first reprevious to said date, and no claim or rever- corded, if given through mistake of grantor, sion or return of any of the money considera- and if prior grantee tendered subsequent tion herein expressed, but all such timber re- grantee the purchase price, with interest from maining on said land at said date shall be the date of purchase?" property of the owners of said land as fully The testimony shows that the Goodmans as if this permit had not issued. Witness our acted exclusively as agents of the Peninsula hand and seal October 25, 1894. Jas. B. Iron & Lumber Company in disposing of its Goodman & Co. (Seal.)
timber and land. They made the sale to the "We hereby fully consent and agree to the defendants, though the conveyance was exconditions expressed in the foregoing permit. ecuted by the officers, and we think that the (Seal.)”
evidence shows that they were permitted by At the same time they received $3,600, as the Peninsula Iron & Lumber Company to act the full purchase price of the timber men- for it in all such matters. We do not distioned therein. This writing was recorded, cover any affirmative evidence that they were although not acknowledged.
not authorized in writing to sell timber, but, The complainant subsequently made a con- whether they were or not, there is no doubt tract with one Porterfield, whereby he agreed that the sale to the complainant was acquiesto cut the timber for the complainant within ced in by the Peninsula Iron & Lumber Comtwo years, and he proceeded to do the work. pany, and that the land was subsequently sold In September, 1895, he began the construction and conveyed to the defendants for an inadeof a logging road upon the 40 acres in ques- quate price, upon the mistaken belief that tion, connected with his main logging road, the pine had been removed by the complainwhich ran through other portions of the tract, ant under its contract. Immediately after its which main road led to the railroad. On De- purchase of the timber, the complainant's cember 17, 1895, the Peninsula Iron & Lum- agents entered upon the tract, and made exber Company sold and conveyed to the defend- tensive inroads upon the pine. Its logging ants, by warranty deed, the 40 acres in dis- roads were extended to and upon the lot in pute, for $120 in cash, who claim that they question before its purchase by the defendhad no notice of the contract previously made ants. The defendant Lundquist was a secwith the complainant. Their deed was re- tion foreman on the railroad, and according corded after notice of complainant's claim. to Porterfield's testimony, he was engaged Porterfield subsequently removed the pine in building a side track for Porterfield's landtimber under his contract with the complain- ing at the time Porterfield was constructing ant, whereupon the defendants brought an ac- the logging road, and knew that Porterfield tion against the complainant to recover treble was getting out timber in that region. He damages, under the statute (How. Ann. $t. c. was in the habit of bringing Porterfield's mail 272). The complainant tendered to the de- daily. Both defendants testified that they did fendants the amount paid by them for the not know that Porterfield was working on the land, with interest, and asked them to deed lot in question. Lundquist was a railroad the land to it. This being refused, complain- boss, and Fridstrom was a miner. Both say ant filed a bill praying a decree that the de- they were used to the woods, and Fridstrom fendants' deed should be held to be subject says that their business on that 40 was lookto the contract, and that the action at law be ing for pine. If that is so, the letter from restrained. The bill was dismissed, and the Lundquist proposing to buy the tie timber and complainant has appealed.
spruce was not ingenuous. The letter is as The questions raised by the record are stat- follows:
“Randville Station, Dec. 4, 1895. J. A. Van, by it, though, not being executed by one Cleve, Marinette, Wis.-Dear Sir: Would whose authority appeared to be in writing, it please let me know if stumpage can be bought was inadequate, under the statute of frauds, on the E. 12 of the N. W. 144 of the N. E., all in to convey title to the standing trees. In view, Sec. 23, T. 42, R. 30, Dickinson Co., Mich. I however, of the full payment of considerawould like to buy the tie timber and spruce tion, and the work done by the complainant on the above description land, if sold at a rea- in reliance upon it, we should consider the sonable price. Respectfully, Alf. Lundquist. contract valid in equity, as a parol contract
"If you have any maps of the Upper Me- partly, if not fully, performed; and we should nominee, please let me know the price of confirm the complainant's title to the timber same, so I can send and get one. A. L.” cut, and enjoin the prosecution of the tresWe also insert the remainder of the cor
pass case. The defendants have succeeded respondence:
to the title of the Peninsula Iron & Lumber "Marinette, Wis., Dec. 5, 1895. Alf. Lund- Company as to the 40 acres described, but quist, Esq., Randville, Mich.-Dear Sir: subject to whatever legal or equitable rights Yours of December 4th received. The stump- the complainant had in the premises. Had age is not for sale, separate, on the tracts de- they prevented the complainant from entering scribed in your letter. We do not, however, and removing the timber after preparations place any particular value in the land. In- had been made to do so, we should, upon a closed is a diagram of 42-30 for the prices of proper bill filed for the purpose, have specifieach forty for warranty deeds, except the cally enforced this contract, by requiring mineral rights. If you desire to secure ei- them to permit the complainant to remove the ther or all of the tracts noted in your letter, timber. But they did not prevent the removal please advise me at once. A map of the Up- of the timber. They waited until it was reper Menominee country, mounted on cloth, moved under a claim of right, and then comwill cost you fifty cents. If you will remit menced an action, punitory in its nature, to same, will mail you one. Yours, truly, J. A. recover three times as much as their actual Van Cleve.”
damage amounted to, upon their own theory. “Division, Randville Station, Dec. 15, 1895. Under these circumstances it is only necesJ. A. Van Cleve, Esq., Marinette, Wis.--Dear sary to ascertain whether the contract was Sir: Yours of December 5th received, regard- one which should have been enforced, and, ing the land in Sec. 23-12-30, S. E. of S. W. if so, to restrain the prosecution of the action Price marked on the diagrams is $120.00, of trespass. We think the conduct of the which you will find inclosed in this letter. If defendants has been unconscionable. They you please, send us deed for same tract de- should have permitted the complainant to take scribed. Yours, respectfully, Alfred Lund- the timber, or accepted the offer of reimbursequist & Chas. Fridstrom, Randville, Mich." ment. The decree of the circuit court is re
The testimony shows that there was pine versed, and a decree will be entered in this
We are of the opinion that the timber con-
Judge. which to remove the timber from such por
(Supreme Court of Minnesota. Jan. 27, 1899.) tions of the land as could not be conveniently PERPETUATING TESTIMOXY - ELECTION Contest. lumbered the first season, and that the show
Gen. St. 1894, $ 153, in relation to elections.
reads as follows: “When the canvass shall ing of diligence was sufficient, under the pro
have been completed, and as soon as practicable vision, which was that permission was given thereafter, in the presence of all the judges, to cut and remove timber at any time pre- each box shall be locked and sealed by pasting vious to the 1st day of June, 1895, "with
firm paper across the lid and body of each box
in such a manner that the box cannot be opened privilege of another year if needed to remove
without breaking the seal; and each judge shall timber.” Had the Peninsula Iron & Lumber write his name upon said paper in such place Company remained the owner of the premises, that the box cannot be opened without tearing and commenced the action for trespass, we
the name. Said sealings shall not be done, how
ever, until it shall have been ascertained by a should have no hesitation in saying that the
canvass of the ballots in all the boxes, that all contract for the sale of the timber was made the ballots so to be sealed up in said box have
1 been placed therein; but the same shall in all the manner provided by law, and took the cases be done before the board shall separate
necessary steps for such purpose; but that or adjourn.” Section 154 of said statutes, in part, reads as follows: "Each ballot box, as
said Megaarden secured the dismissal of said soon as practicable after the same is sealed as contest and proceedings therein, upon the provided in the last preceding section, shall be ground that said petitioner had failed to comdeposited in the office of the town, city or village clerk, and carefully preserved therein with
ply with the provision of the statute which unbroken seals until the next general election,
requires that an appeal be entered with the unless sooner opened by the proper authority clerk of court within 20 days after the elecfor a recount or for examination." P., the relat- tion; but that said failure to enter said apor, claiming to have been duly elected to the office of sheriff of Hennepin county, on the 8th
peal was through no fault of his own, and day of November, 1898, for the term of two
that he intended to prosecute the same to a years, commencing on the 1st day of January, final determination, and that it was his bona 1899. petitioned E., the district judge of said
tide intention to institute proceedings to bring county, to have the deposition of L., city clerk of the city of Minneapolis, taken, for the pur
an action to secure said certificate of election pose of perpetuating the evidence relating to to said office, and to secure said office. He and contained in the ballots cast at said election further alleged that L. H. Lydiard, the city for said office of sheriff, and which ballots were then in the sealed ballot boxes, and in the offi
clerk of the city of Minneapolis, has in his cial custody of said L., as city clerk. Held, that possession all the ballots that were cast at the taking of such testimony did not come with- said election in said city of Minneapolis; and in the scope of Gen. St. 1894, tit. 4, c. 73, pro- that he is informed and believes that said viding that, when any person is desirous to perpetuate the testimony of any witness, a judge Lydiard can testify from said ballots, and of a court of record should cause such deposi- upon and from the inspection of the same, tion to be taken.
that the petitioner received such plurality of (Syllabus by the Court.)
all the votes cast by the electors within said Application by the state, on the relation of
city of Minneapolis for said office of sheriff Alonzo Phillips, for a writ of mandamus to
for said term of said election as will show, Charles B. Elliott, judge. Writ quashed.
not only that he (Phillips) did receive a plural
ity of all of said votes in said city, but that A. B. Jackson, Moses E. Clapp, and E. R. he received a plurality of all the votes cast Lynch, for relator. Brown, Reed, Merrill &
by the electors of the county of Hennepin Buffington, and J. H. Steele, for respondent. for said oflice of sheriff for said term; and
that the relator was desirous of perpetuating BUCK, J. The relator, Alonzo Phillips, on the testimony of said Lydiard concerning this December 30, 1898, presented a verified peti- petitioner's claim to said certificate of election to the defendant, Charles B. Elliott, one tion and said office; and that the only other of the judges of the district court in and for person interested in the petitioner's claim to the Fourth judicial district in the county of said certificate and said office is Phillip T. Hennepin, and requested said judge to take Megaarden, who is a resident of said city of the deposition of L. A. Lydiard, city clerk of Minneapolis. Judge Elliott refused to take the city of Minneapolis, and to cause notice such deposition, and the present application to be given of the time and place appointed is for a peremptory writ of mandamus refor taking of said deposition, and to proceed quiring said judge to proceed with the depositherein as prescribed by Gen. St. 1894, C. tion, as provided by the statute. Upon the 73, tit. 4. In support of said petition, and relator's application, this court issued an alas grounds therefor, the petitioner alleged ternative writ of mandamus requiring Judge that he was duly nominated for the office of Elliott to show why he should not proceed to sheriff of the county of Hennepin, to be voted take the deposition of said Lydiard. Judge upon at the general election in said county Elliott appeared and answered. on the 8th day of November, 1898; and that Does this application come fairly within his name was lawfully upon the ballots by the scope of the provisions of Gen. St. 1894, which the electors of said county voted for c. 73, tit. 4, authorizing the perpetuation of the office of sheriff at said election; and that the testimony of witnesses within the state? he was voted for by said electors for said Section 5693 of said statute provides: "When office of sheriff of Hennepin county, the term any person is desirous to perpetuate the testhereof to begin on the 2d day of January, timony of any witness, he shall make a 1899; and that he received a plurality of all statement in writing, setting forth briefly the votes cast by the electors of said county and substantially his title, claim or interest, at said election for the said office of sheriff. in or to the subject concerning which he And he alleged in said petition that he was desires to perpetuate the evidence, and the entitled to the certificate of election to said names of all other persons interested or supotice, and entitled to hold and discharge the posed to be interested therein, their residuties thereof for said term, but that one dences, if known, and if unknown it shall Phillip T. Megaarden received from the coun- be so stated, and also the name of the witty auditor of said county a certificate that ness proposed to be examined, and shall dethe said Megaarden was elected to said ottice liver the said statement to the judge of for said term. The relator further alleged a court of record, requesting him to take that he intended to contest said election, and the deposition of the said witness." Subseappeal from the board of canvassers, in quent sections further provide the method of procedure for recording the deposition in as follows: "When the canvass shall have the office of the register of deeds, when it been completed, and as soon as practicable may be used, and authorizes a subpæna to thereafter, in the presence of all the judges, issue to compel a witness to give his deposi- each box shall be locked and sealed by pasttion in perpetual remembrance of the thing ing firm paper across the lid and body of as presented. The sections are undoubtedly each box in such a manner that the box canintended to take the place of the old equitable not be opened without breaking the seal; bill in perpetuam sui memoriam. Its object and each judge shall write his name upon was to preserve evidence, to assist courts, said paper in such place that the box cannot and prevent future litigation, and especially be opened without tearing the name. Said to secure and preserve such testimony as sealings shall not be done, however, until might be in danger of being lost before the it shall have been ascertained, by a canvass matter to which it related could be made the of the ballots in all the boxes, that all the subject of investigation. The origin of this ballots so to be sealed up in said box have practice, it is said, has been traced to the been placed therein; but the same shall in canon law, which, taking hold of men's con- all cases be done before the board shall sepsciences, extended its right to all cases in arate or adjourn." And section 154 of said which it was important, in the interests of statutes has this provision: “Each ballot justice, to register testimony which would box, as soon as practicable after the same is otherwise be lost. 2 Am. & Eng. Enc. Law, sealed as provided in the last preceding secp. 277, note 3. It was necessary, however, tion, shall be deposited in the office of the in the proceedings by bill in equity, to show town, city or village clerk, and carefully some reason and necessity for perpetuating preserved therein with unbroken seals until the testimony; as that the facts could not the next general election, unless sooner openbe investigated in a court of law, or that ed by the proper authority for a recount or some impediment had been interposed to an for examination." There is no danger of the immediate trial of the suit, or that there was destruction or loss of these ballot boxes, or danger that the evidence of a material wit- the ballots themselves. Their safe-keeping ness might be lost by his absence or death. is already made as effectual by statutory law For these purposes, the common law did not as it could possibly be made by any judicial afford any or sufficient remedy, and bence proceedings through a deposition. It is the litigants or intended litigants invoked the duty of a sworn otucer to keep the ballots auxiliary jurisdiction of equity in perpetu- intact, with an unbroken seal upon them. ating the desired testimony as to some mat- for two years. The term of office of sheriff ters which would likely be necessary at is only two years, and during that time he some future time, if litigation therein should must necessarily commence his action, in orbe instituted. A deposition, while author- der to become entitled to the possession of ized by statute, is still considered as sec- it, if at all; and for such purpose the clerk, ondary evidence, the primary evidence being as custodian of the ballots, could be comthat given orally by the witness in court; pelled to appear personally as a witness in and where the witness whose deposition is court, and give his testimony therein, as thus obtained is within the jurisdiction of well as to produce such ballots in a pending the trial court, and is able to appear and action; and in such case the deposition could testify, the reason for taking his deposition not be used. This is, in fact, a proceeding no longer exists. Weeks, Dep. 457; Atkin. to discover evidence,-.not to preserre it. son v. Nash, 56 Minn, 472, 58 N. W. 39; Our conclusion is that the relator has not Booker v. Booker, 20 Ga. 777.
presented such a state of facts as to bring Taking the facts in the case, can it be his case within Gen. St. 1894, c. 73. tit. 4, held that it appears therefrom that it is the relative to proceedings to perpetuate the tesintent and object of the relator to preserve timony of witnesses within the state, and the testimony sought, by taking the deposi- that the writ should be quashed. It is so ortion of the clerk Lydiard? He knows noth- dered. ing of the material facts in the case, and it is not claimed that he does know any such facts. He is simply the custodian of the ballot boxes containing the ballots, which it
ROLLOFSON et al. v. NASA. is claimed are important evidence in the contemplated proceedings on the part of the (Supreme Court of Minnesota. Jan. 9, 1899.) relator. But, if he continues to be the clerk, Levy of EXECUTION – CLAIM OF THIRD PARTYhis testimony can be secured on the trial of EVIDENCE OF OWNERSHIP_DECLARATIONS. any future action, and hence his deposition 1. In an action where the title to personal is unnecessary. Any clerk succeeding him property is involved, a party may prove that would be the custodian of the same ballot
the person through whom he claims title had
possession and control of such property boxes, and his testimony could also be se- prima facie evidence of ownership, and, the act cured on any such trial. As to the ballots of possession having been proven, the declaracast for the relator and Vegaarden for the
tions of such person while in possession, indi
cating the character of the possession, are also office of sheriff, the law already secures and admissible in evidence, whether made in the preserves them. Gen. St. 1894, § 153, reads presence of the adverse party or not.