I concur with the above on the first, third, fourth, and fifth points.
■Moore, J.The first trial of this case took place in
May, 1904. The judgment on that trial was reversed by this court in an opinion found in 143 Mich. 514. A reference to that opinion will aid in understanding the questions involved here. After the reversal, counsel in the court below was allowed to amend the declaration. Defendant opposed the amendment and excepted to the order permitting the same. At the close of plaintiff’s testimony a motion was made to direct a verdict in favor of defendant. This was overruled. Defendant offered no testimony. The jury rendered a verdict in the sum of $7,137.83. The case is brought here by writ of error.
The first assignment of error demanding attention is, Did the court err in permitting the amendment to the declaration ? Counsel say that the additional counts added by the amendment set forth a new and different cause of action from that alleged in the original declaration, and that for this reason the allowance of the declaration was beyond the power of the court; that the original counts alleged a conversion of the property, while the amended declaration charges loss by reason of negligence in towing at an improper season of the year, by reason of insufficient fastenings while the logs were in Portage Lake, and also includes the claim for damage by reason of per*376mitting a portion of the logs to remain on the banking’ ground. Also loss through negligence in conducting the; work of rafting and booming.
An inspection of the pleadings will show that both declarations refer to the same logs, the same persons, and the same acts. We think the amendment was permissible under 1 Enc. PI. &Prac.,title “Amendments,” pp. 558-564, Pratt v. Montcalm Circuit Judge, 105 Mich. 499, and City of Detroit v. Wayne Circuit Judge, 125 Mich. 634, and cases cited therein.
Error is assigned upon the admission of testimony. We think no good would come of a discussion of these assignments, indeed counsel do not lay much stress upon them. We shall content ourselves by saying we think the testimony was allowable. Error is assigned as to the argument of counsel. The statement criticised is based upon the record. It is urged that the assignment from Baudin to Croze was not broad enough to allow a recovery arising out of the negligence of the defendant. Among other things stated in the assignment is the following:
“ And I do hereby sell, assign, transfer and set over unto the said Joseph Croze all my right, title, claim and interest in and to said logs and timber aforesaid.”
We think this language, taken in connection with the rest of the assignment, was sufficient to give plaintiff the right to recover for loss arising from the negligence of defendant.
Did the court err in refusing to direct a verdict in favor of defendant ? The record shows that defendant received from the logs and timber sold $7,613.43, while the mortgage debt was $4,480. It is the claim of plaintiff that, after all reasonable expenses are satisfied, a balance would still be due him. It is also claimed that a large quantity of the logs were lost by reason of the negligence of defendant; that no man of ordinary prudence would attempt to move the logs at the time they were moved. *377There was testimony tending to support this claim. We think the judge did not err in refusing to direct a verdict.
Counsel say:
“Nowhere in the record is there a scintilla of evidence as to the cause of the breaking up of the rafts in Portage Lake. No witness testifies to having seen the actual breaking up of any boom, and there is nothing shown by the record but the bare fact, that on one, two or three occasions, from some cause unknown, the logs became scattered.”
And they argue that defendant cannot be held for any loss of logs in Portage Lake. The logs which were on the bank when seized were in a safe place. They were taken from there at a time of year when, according to the record, no reasonably prudent man would undertake to move them. After they reached Portage Lake the booms around them and the logs already there broke up at least three times, according to some of the testimony. It is true the agent of defendant testified he gathered up all the logs at these times, but there was other testimony tending to show that a large quantity of logs were not recovered. It is true, too, as stated by counsel, that no one testified to what caused these booms to break, but we think it became a question for the jury whether there was any loss of logs at Portage Lake, and, if so, whether it was caused by the negligent acts of defendant. We think the following cases are in point: Schoepper v. Chemical Co., 113 Mich. 582; La Fernier v. Wrecking Co., 129 Mich. 596, and the cases cited therein.
Was it error to permit the plaintiff to read in evidence the testimony of Mr. Moore ? This testimony upon the first trial was offered in evidence by the defendant. Upon the second trial it was read by the attorney for the plaintiff. Counsel say they had no opportunity of cross-examination and the evidence should not have been read. The witness was shown to be beyond the jurisdiction of the court. We think the testimony competent.
Error is assigned upon the giving of plaintiff’s requests *378to charge, the refusal to give certain of defendant’s requests, and upon the general charge of the court. Many of the assignments.of error in relation to the requests to charge are disposed of when we say the plaintiff made a case which it was proper to submit to the jury. Especial ' stress is laid upon an assignment of error growing out of the language in the general charge.
“The exact amount of logs banked and placed in the dam is not determined by the testimony. Estimates of the same have been given to you, but you will decide, if you can, from the testimony, what was the amount of logs at Misc.y Bay, being governed entirely by the testimony.”
We quote from the brief:
“ On what possible theory of the case can it be supposed that it was incumbent upon the jury to determine from the testimony the amount of logs at Misc.y Bay ? This amount could have no relation to the quantity of logs lost in towing. If the defendant was liable for loss in towing, the amount of that loss must be determined by itself, and under the testimony in this case the amount of logs at Misc.y Bay, banked and placed in the dam by Baudin, can in no manner be relevant to the question of the quantity of logs lost in towing. Equally true is it that this amount can have no relation to the quantity of logs lost in Portage Lake, if any such were lost. It can in no way relate to the amount of timber actually sold by defendant in excess of the mortgage debt, if there was any such sale. The charge as given was therefore erroneous and extremely prejudicial, as impressing upon the jury the necessity of finding this quantity, and it being so impressed upon them, their minds must have been charged with the notion that that quantity was the measure of defendant’s responsibility.”
Other sentences are also quoted from the charge which are objected to. We think the language quoted should not be isolated from what preceded and what followed it.
Among other things the court charged the jury: *381ing of possession by the defendant company very soon after that was done. He made no claim upon it for any property not covered by the mortgage, he pointed out no logs which he claimed were not covered by the mortgage. So this is a matter not for your consideration in the slightest degree.
*378“Had nothing been done with the property from the time it was banked the winter preceding, you would be justified in holding that the same amount still remained *379upon the land, but there is positive testimony in this case that certain rafts were taken by Baudin from this mass of logs, and towed down to Portage Lake. Is there testimony in this case from which you can determine what the amount was which was so taken and conveyed from Misc.y Bay by the rafts ? If there is, then you should consider that testimony in determining the amount which remained at Misc.y Bay, and which was taken possession of by the defendant. There is also testimony introduced on the part of the plaintiff as to the amount of logs which was finally left at Misc.y Bay, and testimony showing that the defendant took away two rafts from Misc.y Bay. If there is testimony in this case from which you can determine the amount which was left on the shore at Misc.y Bay, and the amount taken by the defendant in the two rafts, then you have a right to consider all that in determining the amount which was seized by the defendant at Misc.y Bay.
“In addition to that, there was a quantity seized by the defendant in Portage Lake, which amount is to be added to that taken by the defendant at Misc.y Bay, and these two together constitute the full amount of property for which the defendant is responsible. After the defendant had taken possession of the property at Misc.y Bay and in Portage Lake, it joined with the Tamarack Mining Company in appointing an agent to look after the interests of the two companies. The Tamarack Mining Company in its contract with Baudin was entitled to take possession of a million feet and to bring them down to Portage Lake and deliver them at Dollar Bay. The logs of the Tamarack Mining Company were so intermingled with the logs covered by the mortgage that it was unreasonable to expect them to be separated or sorted at Misc.y Bay.
“Acting for the two companies, their agent, Mr. Moore, took possession of the entire mass of logs; thereupon the title to the so-called Tamarack logs passed to the Tamarack Mining Company.
“ Under all the testimony in this case, you will have to determine whether it was negligence for the defendant to tow or attempt to tow the logs in controversy from Misc.y Bay in September and October, 1901, and if you find the defendant was negligent, then it is liable to the plaintiff for such loss and damage as is shown by the evidence in this case to have resulted from the towing. The testi*380mony in the case is undisputed that the time of year was not a safe time for towing on Lake Superior, but in determining the question as to the negligence of the defendant in this case, you should take into consideration all the circumstances which have appeared bearing upon that question ; the fact that the man in charge was agent of the Tamarack Mining Company, the owner of a large portion of the logs, the situation of the logs on the shore of Misc.y Bay, and in the dam, and all other matters which have been testified to so far as they bear upon the question of the plaintiff’s negligence in removing the logs at that time of the year.
“ As I have said, the Tamarack Mining Company, at the time of the removal, was the owner of the logs. It had a right to handle them as it chose. They could not be separated from the Baudin logs where they were, and the condition of the logs at that time so far as the intermingling is concerned was entirely due to the acts of the plaintiff’s assignor. I say all these matters should be considered by you in determining the question of the negligence of the defendant, and this should be borne in mind in considering what was done after the logs reached Portage Lake.
“The defendant in this case, having the interest of a mortgagee in the property, was obliged under the law to take such care of the property as a reasonably prudent man under like circumstances would take with regard to his own property, and the situation is not one where it appears from the testimony that the defendant company had the absolute control and right to do with the mass of logs as it chose until after the sorting was done in Portage Lake in the spring of 1902.
“It is also claimed by the plaintiff that the defendant company is responsible because it sold more logs than was necessary to satisfy the mortgage and reasonable expenses of sale. On this branch of the case a good deal was said to you about the seizure of certain logs by the defendant company, which were not included in the mortgage. You are not to consider this matter at all for this reason: All the property taken by the mortgagee was in the condition in which it was left by the mortgagor, so mixed and intermingled that it was impossible for the defendant company to distinguish and take just such a number of logs as were covered by the mortgage. The situation was created entirely by the mortgagor. He knew of the tak-
*381“Now, in determining whether more logs were sold than were sufficient to cover the mortgage debt and reasonable expenses, you must take the situation of things as they were at that time. You will allow the defendant company all the expenses properly incurred by it in removing the property from Misc.y Bay to Portage Lake, in caring for it at Portage Lake, its expenses in the sale and delivery and such other reasonable expenses as may have appeared in the evidence in this case. You will also consider the situation of the property, nature of the property at the time the second sale was made. No claim is made in this case that the first sale made by the defendant company satisfied the mortgage. If the situation of the property remaining in the hands of the defendant company was such as to render the second sale proper in its amount, and it were such that the defendant company could not select a particular amount from the mass at fair advantage, still leaving a small residue, it had a right to sell as it did, and the recovery (should you find that this was the state of affairs) of the excess price could not be had in this action. But if you find that the situation were otherwise, and that the defendant company could have sold just enough to satisfy the amount of the mortgage and reasonable expenses, and that it did sell more than enough, then you could render a verdict in favor of the plaintiff for the value of the property which you have found was sold in excess of the necessary amount.
“Now, gentlemen, there are certain questions which you must determine positively from the testimony. The jury will determine the quantity of logs and timber put in by Baudin and banked on the shore at Misc.y Bay and in the slough in 1901.
“From the quantity of logs and timber so determined, the jury will deduct one million feet of logs, eighteen feet and upwards in length, which became the property of the Tamarack Mining Company, and need not be further considered in this case. The jury will determine the quantity of logs towed by Baudin in the summer of 1901 *382to Portage Lake, and the quantity thereof taken possession of by the defendant.
‘ ‘ The jury will determine the quantity of logs actually in the possession of the defendant in Portage Lake in the fall of 1901, which came from Misc.y Bay, including those towed by Baudin and those towed by the defendant.
“ The jury will determine the quantity of logs lost by the defendant in towing from Misc.y Bay, and the value thereof. The jury will determine the quantity of logs lost in Portage Lake, and the value thereof. If the jury find the logs and timber were lost by reason of the negligence of the defendant, either in towing from Misc.y Bay or in Portage Lake, they will determine the quantity and the value thereof, and render a verdict therefor in favor of the plaintiff.
“Default having been made by Baudin in the payment of the sum secured by the chattel mortgage in evidence, the defendant was authorized to take possession of the mortgaged property and sell so much thereof as was necessary to satisfy the debt, interest and reasonable expenses, and to retain the same out of the proceeds of such sale. The overplus or residue of said property, so mortgaged, if any, belonged to, and should have been returned to, Baudin or his assignee, the plaintiff in this suit. You will determine the amount due, the interest thereon up to the time of sale, and reasonable expenses, and the quantity of logs and timber sold by the defendant for the purpose of satisfying the same, and fix and determine the quantity of logs and timber which should have been returned to Baudin and his assignee, the plaintiff, if any, and the value thereof, and return a verdict therefor in favor of the plaintiff, together with interest thereon from the time such mortgage debt was satisfied.
“ The defendant, holding a chattel mortgage given by plaintiff’s assignor, and there having been a breach of the condition by failure of Baudin, the assignor, to pay the indebtedness secured by the mortgage, had, under the terms of said mortgage, the absolute right to take possession of the mortgaged property, and also all other property of the same nature which had been indistinguishably intermingled with those described in the mortgage, which would by such intermingling become part of the mortgaged property.
“It appearing that there were mingled with the logs *383covered by the mortgage, certain logs belonging to the Tamarack Mining Company under a contract of sale thereof made by Baudin to said Mining Company, it was the duty of the defendant to gather the property together at Portage Lake and that the Tamarack logs should be withdrawn and sorted out before the mortgaged property could be sold.
“ The defendant cannot be responsible in this case for' any loss or damage to any of the Tamarack logs, which logs, as described in the contract, were one million feet of hemlock logs, eighteen feet and upwards in length, and fourteen inches and upwards in diameter at the smaller end.
“ Under the allegations of the declaration in this cause, the defendant cannot be held responsible for any loss of logs except such as resulted directly from some acts of negligence of the defendant in handling the same. If you find that the defendant towed a portion of the logs in question at a season of the year when it was improper to do so, and that such towing was negligent, and showed a lack of ordinary care on the part of the defendant, the defendant then would be held responsible for any loss of logs occurring through such towing and as the direct result thereof, but could not be held for any further or additional losses.
“Under the testimony in this case you must confine yourselves to the consideration of loss resulting from the towing of the second raft towed under the management of defendant’s agent, Mr. Moore. Under the testimony, this raft contained a little more than six hundred thousand feet. As the law will not permit you to guess how much more, you are limited to six hundred thousand feet as the size of this raft. The testimony of Mr. Moore, plaintiff’s witness, shows that there was a small proportion of this raft lost, and that the loss was less than one-fourth. And there is no other testimony in the case on the subject. Under this testimony you can find no amount of loss resulting from any negligence of the defendant exceeding one-fourth of the quantity of this raft, and such loss as you may find must be apportioned between the Tamarack logs and the logs covered by the mortgage, and only so much of the loss as consisted of the logs covered by the mortgage can be chargeable to the defendant, and your verdict must be limited to the value of that particular loss. * * *
*384“Any damages which the plaintiff may be entitled to recover are limited to his property interest in the property alleged to have been lost. This interest could only be that remaining over and above the amount due on the mortgage, together with interest and expenses of removal, caring for and sale of the property, together with all sums paid for liens upon the logs. If you should find any loss of property for which defendant is responsible under the principles laid down to you, nevertheless the plaintiff cannot recover therefor unless such loss exceeds any -balance due under the mortgage, and this only to the extent of such excess.
“It appears'from the testimony in this case that a certain portion of the logs were towed in the summer of 1901 to Portage Lake by Baudin and remained under his charge and control until the time when the defendant took possession under its mortgage. It further appears from the testimony there was some loss of logs from this quantity. The amount of such loss is wholly indeterminate under the testimony and you will therefore eliminate from consideration all or any part of the logs which were towed by Baudin before the Canal Company took possession, since the defendant cannot, under the testimony in this case, be held responsible for any loss of any portion of said logs, even if loss did occur from such portion after it took possession.”
We do not think there is any just cause of complaint growing out of this charge. The judgment should be affirmed.
Carpenter, J. I agree with the Chief Justice that this case should be reversed upon the grounds 3, 4, and 5 stated in his opinion. Upon the other propositions discussed in his opinion and in the opinion of Justice Moore, I agree with Justice Moore. Blair, Montgomery, Ostrander, and McAlvay, JJ., concurred with Carpenter, J.