PARKHURST V. JACOBS.

the plaintiff's action. In this case, the goods converted were at the very time peaceably possessed by Jacobs, pursuant to his arrangement with Black and Alexander, and presumptively with their approbation. There was no antagonism between the right of Jacobs, as purchaser, and mortgagor, and that of Black and Alexander, as vendors, and mortgagees. The interests of the parties were neither hostile nor inconsistent, but actually compatible. Neither party had interposed any adverse claim, or attempted to displace or subvert the apparent or pretended right of the other.

The entire transaction imported, that as between the parties, and according to their understanding, Jacobs held possession of the goods, as owner, subject only to those claims which might be asserted under the mortgage, as an instrument of security; and Parkhurst has placed himself in no position to challenge the power or authority of the parties to make such disposition of the goods. He represents neither creditors nor subsequent purchasers or incumbrancers, but appears to be a mere wrong-doer, attempting to shield himself by setting up a right in Black and Alexander, more extensive than any they have claimed.

As between the parties to the sale and mortgage, Jacobs had the actual possession and the right to sell and give a valid title; and the transaction involved a concession by Black & Alexander, of a right in Jacobs to protect his interests, by action, so long as they should discover no necessity for intervening.

There is, therefore, no better ground for holding that the right or interest of Black & Alexander, under the arrangement, was an outstanding one against Jacobs, in the sense of the rule invoked, than there is for contending that the title of the principal is an outstanding one against his factors, sufficient to defeat the latter, when prosecuting a stranger for a wanton conversion.

Since the relations of the parties to the sale and mortgage, have, as respects the property, remained coincident,

SAVERCOOL ย. FARWELL.

and since Jacobs had, among others, the right of possession, as against Black & Alexander themselves, in the absence of any election by the latter to set up a conflicting claim, it can not be reasonable that the defendant, when prosecuted by Jacobs for a wrongful conversion, should be allowed to escape, by showing that Black & Alexander might have placed themselves in a position, though they did not, which would have made the holding by Jacobs indefensible, as against them.

The judgment must be affirmed.

The other Justices concurred.

Samuel Savercool v. Jesse H. Farwell.

Contract: Delivery: Evidence: Variance. By the terms of a contract executed January 9, 1867, one hundred thousand feet of the lumber contracted for, were to be delivered by the 15th of May following. Eighty per cent. of each lot of fifty thousand feet thereof was to be paid for on delivery, and the balance on delivery of the whole amount.

On the 9th of April following, the parties made a further agreement, by the terms of which, fifty thousand more feet, of another kind of lumber, was to be delivered, subject to inspection by a competent inspector chosen by Farwell; that the inspection of this, and the lumber mentioned in the first contract, was to be done on the dock at the place of delivery, as mentioned in the prior contract: and, further, that at least one hundred and fifty thousand feet of the lumber mentioned in the first contract was to be delivered by May 1, 1867.

In an action for the breach of said contracts, after the introduction of the first contract, it was held that the second was properly admitted in evidence. It does not change the mode or rate of payment; neither could it be assumed that the one hundred and fifty thousand feet should all be delivered at once but in the same quantities as mentioned in the first contract.

Contract:

Parol Evidence. Evidence was offered to show that, prior to the date of the last contract, there was a verbal agreement that the lumber mentioned in the first contract should be inspected at defendant's mill, and that a portion of it was so inspected and found correct: Held, that this evidence was properly excluded, all prior verbal agreements being merged in the written contract of April 9th, on the same subject, which required the inspection to be on the dock at Detroit.

Pleadings:

Variance: Evidence. Evidence was offered to show that the inspection could not be made by the person mentionel in the contract, but that the parties agreed that another should do it, and that he did so.

SAVERCOOL V. FARWELL.

Held, That this was competent. That it did not constitute such a material variation of the substance of the contract as should require it to be set out in the declaration, but was merely a subsidiary matter arising in the course of its performance; neither could its proof be treated as a variance. The defendant could have been neither misled nor surprised by it.

Pleadings and evidence: Contract. Copies of the two contracts were set out in the declaration, but it was not alleged whether the lumber was inspected or not. The gist of the action and the only breach assigned, was the non-delivery of the lumber. The question of actual inspection could not, therefore arise upon the pleadings.

Evidence: Contract, when conclusive. Evidence tending to show that some of the lumber was improperly rejected by the inspector, was excluded by the court. Held, proper. The inspection was conclusive upon the parties under the contracts.

Damages: Value, at place of delivery. A witness testified that the value of such lumber, at Wayne (a place eighteen miles in the interior, by rail, from Detroit), was $30 per thousand feet; but that it was higher in Detroit, the place of delivery, though he did not know the price in Detroit. Held, that this was competent evidence, and could not prejudice defendant.

Contract: Evidence: Fault of Plaintiff.

The defendant offered evidence tending to show that a portion of the lumber which was rejected by plaintiff, complied with the requirements of the contract; that this lumber was brought in and unloaded under plaintiff's orders, and that he declined to inspect a quantity of the one inch sycamore lumber, because there was thin lumber on top of it. Held, That, if this thin lumber interfered with or prevented inspection, plaintiff was held responsible for it, and should have removed it; and by failing to do so, before he brought his action, he absolved the defendant from this stipulation of the contract, and left him at liberty to prove, if he could, the quantity of such lumber, and that it was such as met the calls of the contract.

Error to Wayne Circuit.

Heard July 18th. Decided October 7th.

This was an action of assumpsit to recover damages for a breach of contract to deliver lumber.

The declaration set forth two different contracts. The common counts were also added.

The defendant pleaded the general issue, and gave notice of recoupment.

On the trial the plaintiff offered in evidence a contract, bearing date January 9, 1867, made and executed by S. Savercool and J. II. Farwell, by the terms of which, said Savercool agreed to deliver to said Farwell on the Michigan Central Rail Road dock, in Detroit, one hundred thousand feet of boards, twelve and fourteen feet long, one inch thick, and thirteen inches wide: One hundred thousand feet of

SAVERCOOL v. FARWELL.

boards twelve and fourteen feet long, five-eighths of an inch thick, and seven inches wide: All to be edged and entirely clean, and piled in cross piles as fast as sawed. One hundred thousand feet to be delivered as above by the 15th of May, 1867, and the balance of one hundred thousand by the 15th of June following.

Said Farwell was to pay for said lumber as follows: $20 per one thousand feet for the inch lumber, and $16 per thousand feet for the five-eighths.

Payment to be made as follows:

Eighty per cent. on each lot of fifty thousand, and the balance on the delivery of the whole amount, as above stated.

Said lumber to be inspected by W. E. Warriner, or some competent inspector whom he might choose.

Plaintiff then offered in evidence, under objection, another contract dated April 9, 1867, by the terms of which said Savercool agreed to deliver to said Farwell the following lumber at the dock of the Michigan Central Rail Road Company: Fifty thousand feet of white wood board, subject to inspection, and also that said Farwell should receive said lumber, and pay said Savercool the sum of $25 per thousand feet, and that this, and the lumber mentioned in the previous contract, was to be inspected on the dock at the place of delivery; at least one hundred and fifty thousand feet of the lumber mentioned in the previous contract was to be delivered by May 1, 1867.

Plaintiff's counsel then offered evidence tending to show the amount of lumber received by plaintiff under said contract; the sums of money advanced to defendant by plaintiff; and the damage to plaintiff by the non-delivery of a portion thereof under the contract.

On the cross-examination of said plaintiff, he testified, tending to show that there was not an agreement subsequent to that of January 9th; that said lumber should be inspected at defendant's mill, in lots of fifty thousand; that

SAVERCOOL V. FARWELL.

he did not go to defendant's mill and inspect part of said lumber, and did not, at that time, pass upon it, and say it filled the contract.

Counsel for defendant then asked the plaintiff:

Question: In looking over this lumber at defendant's mill, did you not tell Mr. Huntress that it was all right, and would fill the contract (referring to the one inch sycamore)? To which question counsel for plaintiff objected as irrelevant. The court sustained the objection, and counsel for defendant then and there excepted.

Counsel for plaintiff then re-examined said plaintiff and offered evidence tending to show that defendant agreed with plaintiff, that one Hough should inspect said lumber, in the place of Warriner, who could not attend to it, and that Hough did inspect the same, under a written order from the defendant, and rejected a large amount thereof. Counsel for defendant objected, because the said evidence would tend to prove another and different contract from that set up in the plaintiff's declaration; which objection was overruled, and said evidence admitted. Defendant excepted.

Counsel for plaintiff, as part of his testimony to prove damages, called Samuel Walker, who, being duly sworn, testified that he was engaged in the lumber business, and had been for a number of years; that he lived and did business at Wayne, Michigan, and that he knew the market value of white wood lumber of the description in contract "B," on September 1, 1867; and that the market value was $30 per thousand. On cross-examination, witness stated that he did not know the market value at Detroit, but that $30 was the market value in Wayne, and that it would be higher in Detroit.

Plaintiff then rested, and counsel for defendant called Joel S. Huntress, who, being sworn, testified that he had sawed and examined. at the defendant's mill, the quality of the one-inch sycamore, in said contracts mentioned. Counsel for defendant then offered evidence by said witness, tending