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these lands profitable; and before his death he desired to sell out these as well as his other lumbering interests, and realize upon them. We think it is established that he was willing to sell these lands at $30,000. The witnesses put the value of pine on this tract at rates from $1.50 upwards. The situa tion was not far from a creek called "Cannon Creek," which, if floatable, would have made the transit cheap. But we think it proves that this stream was useless for floatage. By land carriage the distance was considerable to the Manistee river, down which the logs were to be run, and the country not very favorable, being a good deal broken. The witnesses agreed that, if a railroad were practicable, the carriage would be more economical; but, while there is some conflict in this, the facts satisfy us that no one could afford to put in a rail or tramway merely to get out the lumber from this tract; although, if owning adjacent lands to any large extent, it might be done.

In the conflict of testimony, arising from different estimates on this subject, we do not think that the executors had any reason to assume the pine was worth any more than two dollars a thousand, if it was worth that. It is evident that the executors considered it desirable to dispose promptly of the lumbering interests of the estate. Neither of them seems to have been very much experienced in lumbering matters, and the efforts made to ascertain values and secure bidders did not bring in any large bids. There is some confusion in the statements of various witnesses concerning their own conversations, but, when all are compared, it does not appear to us as probable that any better offer was supposed to have been made, or was made in fact. Some, which were apparently made with a hope that they would be accepted, were many thousand dollars below the price which they secured. Phippen and Crawford endeavored to get the land at the price which Brown had favorably considered, of $30,000. This the executors refused, and finally offered to take $40,000. It appears that the purchasers were not willing to accept this without further examination, and that, on such examination, they became satisfied the estimates were low, and the price such as to make the purchase a profitable one. After this examination, the result of which was not made known to the executors, the bargain was closed. It would probably have been wiser for the executors to have delayed selling, for further inquiry and examination; but we can see no sign of bad faith in their conduct. They obtained $10,000 more than Brown would have been willing to accept, and they acted on an estimate which he had acted on, and obtained a price which was not, we think, such as they had not a right to deem sufficient on that estimate. We see no signs of fraud whatever. The difference between the purchase price and that on the resale was very great, and constitutes about all there is in the record to throw doubt on the fairness of the transaction. But it is abundantly clear that the dealings in such lands were speculative, and in that year quite as much so as ever, if not more so, and that dealings between sharp and well-informed lumbermen showed as great variances in values; and it is not clear from the proofs that the bargain obtained by Mr. Ruggles was one which turned out in the end to have been excessively advantageous.

Upon the whole case, we think no fraud is made out, and that the decree should be affirmed.

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

BONNAH v. MCMORRAN.

(Supreme Court of Michigan. January 6, 1887.)

SEAMEN-WAGES-POSSESSION BY MASTER-CONTRACT FOR SALE.

Plaintiff, who sued the owner of a vessel for seaman's wages, was employed by the captain, his father, who told him that both defendant and the vessel were to be

looked to for his wages. There was testimony tending to show that the father supposed he had an agreement which gave him as much time as he chose to buy and pay for the vessel; that he paid all the seamen but plaintiff out of the vessel's earnings, and paid the entire balance, as he got it, to defendant, on the contract, but it was not shown that plaintiff understood in what shape the supposed contract was. Defendant stood as owner at the custom house, and signed the usual papers for the vessel's employment, and afterwards, during plaintiff's employment, conveyed the vessel to another party for value. Held, that plaintiff was entitled to recover the amount of his wages from the defendant.

Error to St. Clair.

In 1880, Victor Bonnah, plaintiff's father, George Bonnah, plaintiff, and Victor Bonnah, Jr., plaintiff's brother, owned the scow Aunt Ruth, on which defendant had a chattel mortgage. Defendant foreclosed his mortgage, and on the sale bought in the boat in his own name. Defendant, immediately before or after the foreclosure sale, entered into a verbal agreement with plaintiff's father that defendant would rebuild and refit the boat, and, when complete, Victor, Sr., should have full control and management of the boat, paying the men out of her earnings, and should pay to defendant, as fast as he was able, the money due on the mortgage, and the money advanced to rebuild the boat, with interest; and, when the full amount was paid, defendant would give said Victor a bill of sale, but mean while the boat was to remain in defendant's name, but said Victor was to have sole possession. Victor ran the boat under this agreement, and, after paying all the men except plaintiff, paid over the entire balance to defendant on the contract. Plaintiff while under age worked with his father and George on the boat, and after he became of age, in October, 1881, plaintiff continued to work; his father telling him to look for his pay to the scow or to defendant. The court below, holding that plaintiff's case showed no cause of action against defendant, directed a verdict to be entered for defendant, from which plaintiff appeals.

W. E. Leonard, (Wm. M. Cline and Albert McCall, of counsel,) for plaintiff and appellant. Atkinson & Vance, for defendant.

CAMPBELL, C. J. Plaintiff sued defendant, as owner of a scow, for seaman's wages. The defense was that the father of plaintiff was in possession under a parol contract of purchase, with plaintiff's knowledge, and defendant for that reason was not liable. The circuit judge took the case from the jury entirely, and therefore it must be determined on plaintiff's showing.

Plaintiff gave testimony that his father, who was captain, employed him, and gave him to understand that both defendant and the vessel were to be looked to for his wages, which would certainly be within the master's province as authorized to employ seamen. There was testimony which tended to show that the father supposed he had an agreement which gave him as much time as he chose to buy and pay for the vessel; further, that he paid all the other seamen but his son out of the vessel's earnings, and paid the entire balance each year, as he got it, to defendant, with that view. There was testimony indicating that plaintiff had been informed of his father's expectation, but it is not certain that he understood in what shape the supposed contract It appears, further, that defendant stood as owner at the custom-house, and signed the usual papers for her employment. In March, 1884, defendant conveyed the vessel to one Runnels for a consideration of $2,799. The captain, plaintiff's father, was still in commission, and not informed of the sale, which was not recorded for a year after it was made. He swears he had paid $4,000 upon the vessel.

was.

We do not feel disposed to discuss how far a verbal contract or understanding, such as Capt. Bonnah refers to, was binding on anybody. It cannot be claimed that, as he states it, defendant could repudiate it, if valid, and keep all the money which he did keep. By the employment of plaintiff he had a valid claim against defendant, unless his father was in under an independent

control, and defendant out. But, as a matter of fact, defendant received all the earnings, including the money which should have been paid plaintiff, and by his sale to Runnels put it out of his power to carry out the only contract which stood, if any existed, between him and the claims of plaintiff. He cannot repudiate the contract, and hold plaintiff cut off by it, and retain the earnings. The policy of the law is designed to protect seamen from fraud and oppression, and relieve them from unfair advantage. By section 4535 of the Revised Statutes of the United States, it is declared that "no seaman shall, by any agreement other than is provided in this title, forfeit his lien upon the ship, or be deprived of any remedy for the recovery of his wages to which he would otherwise be entitled; and every stipulation in any agreement inconsistent with any provision of this title, and every stipulation by which any seaman consents to abandon his right to his wages in the case of the loss of the ship, or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative."

If this statute applies, and we are inclined to think it does,-there can be no doubt of plaintiff's right to recovery. But, whether it applies or not, the case shows that there was a distinct employment on regular wages, and that defendant received and kept the vessel's earnings, and has not recognized any binding contract which would put him on any different footing from any other owner. Moreover, the captain was his agent, and any agreement which would pay over plaintiff's wages to defendant for no valuable consideration could not be valid or enforceable against a seaman.

In our opinion, plaintiff made out a case, and should have recovered. The judgment must be reversed, with costs, and a new trial granted. (The other justices concurred.)

FISHER and others v. BUSCH and others.

(Supreme Court of Michigan. January 13, 1887.)

1. PLEADING-DEMURRER-PLEA IN ABATEMENT.

Objections to the sufficiency of the allegations in a plea of abatement should be raised by demurrer, and, if not made until after judgment, come too late to entitle them to consideration.

2. REPLEVIN-CROSS-REPLEVIN-PLEADING.

B. brought suit in replevin against F., who was a member of a firm, and N., who was its agent, and in possession of the property replevied. The firm then brought replevin against B., and joined three other defendants with him for the same property delivered to B. upon the first writ, and the only question in both suits was whether B. or the firm were the owners of the property. Held, that the second suit was a cross-replevin, and could not be maintained.

3. SAME-IDENTITY OF PARTIES.

That the parties in the second suit are not identical with those in the first suit is not important, unless the new parties claim some interest in the property or right thereto different from or independent of the parties to the first suit.

Error to Marquette.

Action of replevin to recover the possession of certain white pine saw-logs. Verdict and judgment for defendants. Plaintiffs appealed.

W. P. Healy, for plaintiffs and appellants. F. O. Clark, for defendants.

CHAMPLIN, J. This is an action of replevin, brought by the plaintiffs as copartners under the firm name of West Bay City Manufacturing Company against the defendants, to obtain possession of certain white pine saw-logs. The declaration was in the usual form in replevin. The defendants interposed a plea in abatement, and upon this plea issue was joined. Objection is raised upon the argument that the plea does not possess the requisite allegations as to certainty required in pleas of this nature. No demurrer was interposed, and the objection comes too late after judgment. The gist of the plea is that a prior writ of replevin had been issued out of the same court, for the

same property as that described in this writ, at the suit of said William C. Busch, one of the defendants in this suit, against the said Spencer O. Fisher, together with George L. Burtis and Timothy Nestor as defendants; that the writ was executed and the property delivered to Busch, and he executed and delivered to the sheriff the requisite bond; that Busch filed his declaration in that suit, and the defendants therein appeared and pleaded the general issue; that this is a cross-replevin, and the writ was issued at the suit of the same Spencer O. Fisher, together with Albert A. Crane and Frederick Cole, and against the same William C. Busch, together with Arthur Hill, Eben N. Briggs, and Edward R. McCarty, and the same property retaken and turned over to the plaintiffs in this suit; that this suit seeks to raise the same issue as exists in the former action, and is between the same parties, or their privies. Upon the trial a written stipulation was filed, admitting the following facts:

(1) That the logs involved in this suit, and described in the writ and declaration therein, were taken from the possession of Timothy Nester, September 16, 1885, by the sheriff of Marquette county, upon a writ of replevin in due form, and with the proper affidavit attached thereto, duly issued out of said court on that day, wherein William C. Busch, one of the defendants in this case, was plaintiff, and Timothy Nester, Spencer O. Fisher, and George L. Burtis were defendants. Said Spencer O. Fisher is the same person who is one of the plaintiffs in this case, and the logs involved in this cause are the same as those involved in said first suit, and described in the writ and declaration therein. At the time of the taking of said logs on said writ of replevin, on the sixteenth day of September as aforesaid, said Timothy Nester was in the possession thereof as the agent of the West Bay City Manufacturing Company, a partnership composed of the plaintiffs in this suit, who then claimed to be the owners of said logs, and they were on that day delivered by said sheriff to said William C. Busch on his giving to said sheriff a bond as required by law. Said first replevin suit was pending on the merits, and was undetermined, though no service had been made on the defendant Fisher at the time this suit was commenced. Issue on the merits was thereafter joined in said first suit, and a verdict and judgment was rendered therein on the second day of January, 1886, in favor of the plaintiff, William C. Busch, against the defendants Timothy Nester and Spencer O. Fisher, they having appeared and pleaded therein, and a writ of error has been duly sued out of the supreme court by said Nester and Fisher to remove said cause to the supreme court.

(2) The writ of replevin in this cause was sued out in favor of the plaintiffs herein, and against the defendants, on the seventeenth day of September, 1885, the said plaintiffs claiming the said logs as partners doing business under the name of the West Bay City Manufacturing Company, and said logs were on the same day taken from the possession of said Busch by the sheriff upon said writ of replevin, and delivered to the plaintiffs in this case; they having given said sheriff a bond as required by law.

(3) It is further admitted, for the purposes of the trial of the issue joined on the plea in abatement in this cause, but for no other purpose, that the plaintiffs in this cause, before the sixteenth day of September, 1885, purchased from said Timothy Nester, who before that claimed to be the owner thereof, all the right, title, and interest said Timothy Nester had in said logs, and that, after such purchase, said plaintiffs, as such partners, and at the time of the commencement of said first replevin suit as well as of this suit, claimed to be the absolute owners of said logs, and entitled to the possession thereof, and were the owners of all the title thereto that said Nester had before their said purchase.

The other testimony in the case consisted of the files and records in the two replevin suits. The judge charged the jury as follows:

"Gentlemen of the Jury. The plaintiffs in this case, Spencer O. Fisher, Albert A. Crane, and Frederick Cole, brought a suit in replevin against William C. Busch and others to recover from the defendants certain pine logs or timber set forth in the declaration. The history of this timber, as appears by the stipulation of facts in this case, is this: Timothy Nester had possession of this property, in connection with others here, in the water at Marquette. William C. Busch claimed the right to the possession of that property. On the sixteenth day of September, 1885, he brought his suit against Timothy Nester, Spencer 0. Fisher, and Mr. Burtis to recover possession of these logs. The writ was placed in possession of the sheriff. The sheriff proceeded to execute the writ, took possession of the logs, had them appraised, and William C. Busch, the plaintiff in that suit, gave the replevin bond required by law to be given in such cases; and thereupon the property was turned over to the plaintiff in the suit by the sheriff. Spencer O. Fisher, it appears, one of the defendants in that suit, had associated with him Albert A. Crane and Frederick Cole, under a partnership carried on under the name of the West Bay City Manufacturing Co., at the time of the taking of these logs from the possession of Mr. Nester. The stipulation shows that Mr. Nester took possession of these logs as agent of Spencer O. Fisher and his copartners. On the following day after the replevin by Mr. Busch, viz., on the seventeenth day of September, 1885, Spencer O. Fisher and his copartners brought their writ of replevin against William C. Busch and others to recover back the possession of the property. The defendants in this suit claim that that was what is known as a cross-writ of replevin, and I charge you, gentlemen, under the facts in this case, Spencer 0. Fisher being one of the defendants in the first suit, and one of the plaintiffs in this suit, that this suit is a cross-replevin, and the plaintiffs cannot maintain it.

"It is the law that where one party claiming the possession to property has brought his writ of replevin, given his bond, as between all the defendants in that suit and those who are associated with them, that the title to that property is to be decided in that first suit, and the plaintiff who has brought that suit, and given his bond as required by law, is entitled to the possession of it until his rights are litigated in court in that suit; and any attempt on the part of either of the defendants in that suit, by associating copartners or other persons with him, to maintain another suit to get it back, will not bể tolerated in any court of law. It is therefore a cross-writ of replevin, and the plaintiffs in this case had no right to bring this suit in replevin, and I charge you, therefore, to find a verdict for the defendants in this case.

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The only errors assigned are the following: (1) In the oral charge of the circuit judge to the jury, where said circuit judge says: "Under the facts in this case, Spencer O. Fisher being one of the defendants in the first suit, that this suit is a cross-replevin, and the plaintiff cannot maintain it." (2) In said oral charge, where said circuit judge said: "I charge you, therefore, to find a verdict for defendants in this case."

We think the evidence shows that this suit is a cross-replevin. The real issue to be tried in both suits involves the title to the logs. No possessory rights independent of ownership are involved. In the first suit, Busch claimed the title as against Nestor, Fisher, and Burtis. The plaintiffs in the second suit claim to be the absolute owners as against Busch and his co-defendants. It appears that they claim such ownership as partners, and through a purchase from Nester prior to the issuing of either writ, and that Nester was in possession as their agent. It is plain, therefore, that the title of Busch and the title of the firm of which Fisher was a member could be litigated in the first suit, and that he could show the title and ownership of the property in the firm of which he was a member, and this would constitute a complete defense, and authorize a judgment for a return of the property. No more can be done in the second suit. The same issue is involved and is made

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