Jennisons v. Leonard
ERROR to the Circuit Court for the Western District of Michigan; the case being thus:
Leonard owning certain timber lands in Michigan, agreed on the 1st of September, 1865, with one Cole, who was engaged in the lumber business and meant to cut the timber from them, to sell the lands to him for $27,000, payable, with interest, in three yearly payments; $10,000 in the first and second years, each, and $7000 in the third and last. The manner in which the said yearly payments were to be made was thus: Cole was to cut not less than three million feet of logs in each of the three years, and to pay Leonard, monthly, for every thousand feet cut and removed from the lands, the sum of $3; it being provided and agreed that in case the said monthly payments should fall short of the yearly payments agreed on as just mentioned, Cole was to make up the deficiency. It was agreed that Cole should have possession of the lands 'hereby contracted to be sold' from and after the date of the contract, and the use and enjoyment of them and pay all taxes on them, so long as he should continue in possession of them for the purposes of the agreement; and that Leonard, receiving full payment of the $27,000, with interest, in the manner specified, and on Cole's performance of all his covenants, should execute and deliver to Cole, or to his assigns, good and sufficient deeds of conveyance of the lands, thereby contracted to be sold, free from incumbrance and with warranty.
Cole, at the same time and by the same instrument, agreed to assign, on the execution of it to Leonard & Co., certain swamp lands in Ottawa Harbor.
Prior to June 11th, 1867, Cole executed to L. & H. Jennison a bill of sale of a million of feet of the logs cut on the premises, and three chattel mortgages upon the same, to secure them for advances made to him. The Jennisons not being paid the amounts secured by their mortgages, entered on the lands in question early in July, 1867, and took possession of the timber cut by Cole, and not theretofore removed, and began to remove the same. On the 20th of that month they entered into an agreement, by which they recognized the interest of Leonard in the property, and undertook to pay what was due on the contract to Leonard, and what should become due so long as they 'operated under said chattel mortgage.'
A dispute soon arose as to the amount thus due, and on the 4th of September, 1867, the Jennisons refused further to 'operate' on the land, but abandoned the land, and had not since removed any timber therefrom.
Leonard then, September 12th, 1867, entered into possession of the lands for the alleged breach of contract by the non-payment of $5280 then due and unpaid on the contract of Cole, and took possession of all the 'down timber' not removed, amounting to one million one hundred and twenty-two thousand feet, board measure. At an expense of $5369 this timber was transported by Leonard to a mill near the mouth of the Grand River, sawed into lumber, and placed on vessels for the Chicago market, without interference with his possession, removal, or manufacture by any one. While thus on the vessels, and about to be sent to Chicago, the Jennisons seized the lumber, then worth $13,464, and sold and converted it to their own use, asserting that the logs from which it was manufactured were theirs, by virtue of the mortgages to them from Cole, hereinbefore described.
For this taking Leonard sued them in assumpsit, in the court below.
The case was submitted to the court for trial without the intervention of a jury, under the act of March 3d, 1865, which allows exceptions to the rulings of the court in the progress of the trial, and, where the finding of the facts is special, as under the act it may be, allows this court to determine 'the sufficiency of the facts found to support the judgment.'
The court found the case as above set forth, and upon it held the law to be—
'That the contract of September 1st, 1866, was an executory agreement 'to sell;' that no title passed by virtue thereof, to Cole or his assignee, to any portion of the land or timber described therein; that the stipulation therein contained in reference to monthly payments for timber to be cut and removed, operated as a license to Cole or his assignees to cut and remove annually three million feet or more, so long as Cole suffered no breach of his agreements to pay; but that when a breach occurred, and entry by the plaintiff in consequence, such license was suspended, and could be restored only by waiver on the part of the plaintiff, or by paying whatever was in arrears.
'That no title passed to Cole or his assignees to any timber cut and not removed at the time of breach and entry by plaintiff.
'That the plaintiff's entry, September 12th, 1867, for breach, occasioned by non-payment under the Cole contract, being continued and tacitly acquiesced in by Cole's assignees, restored to the plaintiff both possession and right of property in lands and timber, and that the seizure subsequently by the defendants of the lumber produced from such timber, rendered them liable to the plaintiff in this form of action for the value thereof at the place of seizure, with interest from the date of conversion.'
The court accordingly rendered a judgment in $17,133 for the plaintiff. The defendant now brought the case here.
There were no exceptions to the rulings of the court in the progress of the trial.
Messrs. M. J. Smiley and D. D. Hughes, for the plaintiff in error:
1. The court erred in holding that the entry made by the plaintiff on the 12th of September, 1867, worked a forfeiture or rescission of the contract with Cole for the sale of the land and timber.
This entry, of course, was made on account of the failure of Cole to pay the balance of the $10,000, which matured on the 1st of September, 1867. Such failure did not authorize the plaintiff to rescind the contract unless, in the Cole contract, time was of the essence of the contract under all the circumstances of the case.
Now, whether in an agreement of this sort, time is of essence, is a question of intention of the parties as expressed in the contract.  Manifestly here it was not, for the following reasons:
There is no proviso for re-entry for breach, and no agreements that a failure to pay shall put an end to the contract.
Payment is made a condition precedent to a conveyance, but not to possession, or to cutting and removing.
The plaintiff took the Ottawa lands as collateral security for performance by Cole, showing a clear intention that no right of rescission remained.
The contract, in truth, made a demise for three years in which the nine million feet of timber were to be cut and removed. The agreement is to cut and remove three million a year, for three years, and that Cole should have possession of the lands, from and after the date of the contract, and have the use and enjoyment of them, and pay taxes on them. We have then the case of a demise for three years, or until nine million are cut, without any proviso for re-entry. Without such proviso no re-entry can be made. 
2. If the contract made a lease, then Cole and the Jennisons were tenants at will, and under the statute of Michigan which enacts that 'all estates at will may be determined by either party by three months' notice given to the other party,'  were entitled to three months' notice to quit to terminate the tenancy. 
Mr. L. D. Norris, contra.
Mr. Justice HUNT delivered the opinion of the court.
^1 Shafer v. Niver, 9 Michigan, 253.
^2 Smith v. Blaisdell, 17 Vermont, 200; Doe dem Willson v. Phillips, 2 Bingham, 13.
^3 Compiled Laws, 1871, 4304.
^4 Crane v. O'Reiley, 8 Michigan, 315.