
    BESSER v. WRIGHT.
    Appeal — Findings—Conflicting Evidence.
    A finding by the circuit judge, on conflicting testimony taken in open court, that the omission of a reservation from the vendee’s copy of a contract for the sale of land, supposed to be in duplicate, was a clerical error, will be given great weight on appeal.
    Appeal from Alpena; Emerick, J.
    Submitted October 12, 1900.
    Decided October 31, 1900.
    Bill by Herman Besser against John E. Wright and Harry Wark to enjoin the cutting and removal of certain timber. From a decree for complainant, defendants appeal.
    Affirmed.
    , O’Brien & Francis, for complainant.
    
      Charles B. Henry, for defendants.
   Hooker, J.

On December 31, 1897, Besser and Wright made a written contract, supposed to be in duplicate. The copy taken by Besser was as follows, viz.:

“Hillman, Mich., Dec. 31st, 1897.
“H. Besser agrees to sell to John E. Wright the west half of the southwest quarter of section 31, town 31 north, range five east, for the sum of $100, twenty dollars of which is to be cash, and the balance in five equal annual payments, with interest at 6 per cent, per annum; said Wright to pay all taxes assessed against the land hereafter. All cedar, ash, and elm timber reserved. Wright to have the privilege of paying in full at any time.
“H. Besser.
“John E. Wright.”

That taken byljWright did not contain the words, “ All cedar, ash, and elm timber reserved.”

Some time after the execution of said contract, Wright sold this timber to Wark, who made some ties from some of it, whereupon this hill was filed to restrain the further cutting of timber and the removal of the ties made. The circuit judge found that the omission from Wright’s copy of the contract of the words quoted was clerical, and granted a decree making the injunction perpetual upon payment by complainant to Wark of the value of the labor performed by him. The case is not free from doubt, but we think the judge, who saw the witnesses, was justified in finding that a preponderance of the evidence supported complainant’s claim. His opinion contains a fair review of the testimony, which we need not repeat.

The decree is affirmed,-with costs.

The other Justices concurred.  