150 Mich. 616 | Mich. | 1908
(after stating the facts).
“Quality in every way to be up to standard, or same as has been delivered during past 60 days.”
“ The proof should locate the defect in the glue, identifying it as a thing for which the plaintiff alone was liable.”
The defendants gave evidence to show that the test glue securely held the panels together; that the contract glue did not; that they used the glue in precisely the same way as they did the test glue; that the same man mixed both; that they used the same kind of lumber, and that it was in the same condition as that used during the test period. This was sufficient evidence to prove that the contract glue was not equal to the test glue. Defendants were under no obligations to show what the defect was. Proof that they, used the glue under precisely the same conditions and circumstances, and that it did not hold the panels together, was sufficient evidence to go to the jury that the glue was defective, and not suchas the contract called for.
The court very pointedly and clearly instructed the jury that it was the defendants’ duty to notify the plaintiff as soon as they knew or should have known that the fault was with the glue, and that they could not recover damages for bad panels constructed after they should have become satisfied that the glue was bad. The court used this language:
“I say that they [defendants] ought not to recoup damages, after they should, as honest men, of reasonable judgment and prudence, have become satisfied that the glue was at fault for use in making these panels.”
The question was properly submitted to the jury, unless the law required the defendants to notify the plaintiff upon discovery that for some reason the panels were bad, discontinue its use and cease their investigation as to the cause of the trouble. We do not think the law imposed that duty upon them. They had a right to assume that the plaintiff was performing its contract, and were justified in using the glue and pursuing their investigations until they had become satisfied where the fault lay. Then it was their duty to act.
The trial of this case was long and hotly contested, lasting eight days. On the material points there was a direct conflict of evidence. All the evidence material for the jury to consider was admitted. None that was rejected, even if some of it might with propriety have been admitted, could have been of such a character as to affect the verdict.
Judgment affirmed.