98 Mich. 457 | Mich. | 1894
Lead Opinion
October- 2, 1890, plaintiff and defendant entered into a contract by which defendant agreed to furnish the* chairs to seat plaintiff's opera house for $1,500. The price agreed upon was to be paid by a bankable note, due in 90 days from completion of contract. _ It was provided that if defendant, through negligence or error, made and shipped any chair not in conformity with the plans and specifications, plaintiff “might retain in settlement, from the amount agreed to be paid, double the cost of any chairs so wrongly made or mechanically constructed, until such mistake should be made good;'' but no such mistake or error should, however, affect or delay settlement further than was stipulated as above stated. The title was to
££I recollect the time these parties came here, on the date this writ of replevin was issued. Judge Cahill and Mr. Perigrine came together, and met me in front of the opera house between 8 and 9 o’clock in the morning. Judge Cahill said he had come to demand the chairs. I said to him that I supposed that he had had a talk with*460 you [Montgomery], but' that I would like to see you a minute before making any reply. I had learned from my attorney that he had had a conversation with Judge Cahill before that time in relation to yielding possession of these chairs. Judge Cahill said he would not wait, and I simply said, ‘Well, you probably know your business, and I want to say to you, as I have always said, that the doors shall be opened;’ and I turned and stepped into the store, .and told the janitor to open up the front doors of the opera house, and the parties went in.. I did not go up with them, but went up 20 or 30 minutes afterwards. They were taking the chairs down. I think Mr. Perigrine was in charge. I said, ‘You claim you are in possession of the chairs?’ and he said he did. He said they were there to take the chairs out. I said to him there was no need of tearing them loose from the floor; I intended to replevy them. I should not only replevy the chairs, but, if he did not quit tearing them loose and ' injuring the floor, I should have him arrested for trespass. I went to see Judge Cahill about it, and said: ‘I suppose, under the arrangement with Mr. Montgomery, you know we are going to replevy these chairs. Why not leave them where they are?’”
The agent for the defendant testified that when Mr. Cahill told plaintiff that they had come to take the chairs, and asked if he would let them in, plaintiff replied, “You can go in,” called Mr. Sanborn, who had the keys, and said, “You get the keys and let them in,” which Mr. Sanborn did. After this testimony was given, the following colloquy took place between the counsel for the respective parties:
“By Mr. Montgomery: I would like to know if defendant denies possession of the property at the time the replevin writ was served.
“By Mr. Cahill: No, we claim to have been in possession, and to have been put in possession by the plaintiff, and we claim that under no circumstances could the plaintiff so put us in possession for the purpose of laying a foundation for the replevin suit; that, after having put us in possession, it Avas necessary for the plaintiff to make a demand of us, in any event, before this suit could be maintained.'
*461 “Mr. Montgomery: I think both propositions are true. We had no right to pnt them in possession of this property to lay a foundation to bring suit, and in such a case a demand would be necessary; but we had a right to leave the property, and say to them, ‘ If you take it, you do so at your peril.’ We claim a wrongful taking, and claim a demand.”
At the close of the testimony the record contains the following:
“ The following statement was made by defendant’s counsel, by way of admission:
“ Mr. Cahill: In the opera house one night, Mr. Montgomery said to me, in the presence of Mr. Baird, ‘Now, if you ever want these chairs, you don’t need to replevy them; you can come to me, and I will open the doors for you.
“ Mr. Montgomery: Is that all that was said that evening?
“ Mr. Cahill: That is all that I recollect.
“Mr. Montgomery: Didn’t I say that we claimed the right to them, and yon could take them at your peril?
“ Mr. Cahill: Afterwards, in my office, Mr. Montgomery stated to me, ‘ We will never let you have these chairs; we don’t intend to.’ I replied, ‘I understood you to say, if we wanted these chairs, we could have them without replevying them.’ He says, ‘ We will open the opera house for you, but we propose, in case you take them out, to replevy them.’ I said, ‘ I don’t think you can do that.’ He said he thought he could, and there it dropped.”
The court left all the issues in the case to the jury, who rendered a verdict for the plaintiff
The court should have directed a verdict for defendant.
Judgment reversed, and new trial ordered.
The plaintiff purchased of the defendant assembly chairs for his opera house under a written contract. The chairs were described in the contract by the color of the wood, color of the castings, etc., but it contained no further specification as to quality. The defendant frequently sought to have a settlemeirt with the plaintiff, and, failing in this, took possession of the chairs by virtue of a provision of the contract that the title to-the seating, or any portion thereof, should not pass to the plaintiff, but should remain in the defendant; until full payment in cash had been made. It was admitted that, the payment had not been made, but it was contended that there was a warranty as to quality which had been broken, and that by virtue of a provision of the contract, hereinafter quoted, the plaintiff had the right to retain
“It is further mutually understood and agreed that the seating plans hereinbefore mentioned, when approved by second party, shall be considered a part of this contract, and said first party shall not be held accountable or suffer loss through any errors in measurement of house; but if said first party shall, through negligence or error, make and ship any chair not in conformity with said plans and specifications, then said second party may retain in settle-’ menfc, from the amount agreed to be paid, double the cost of any chairs so wrongly made or mechanically constructed, until such mistake shall be made good, when said sum so retained shall be paid to first party. Such mistake or error shall not, however, affect or delay settlement in accordance with this contract further than is herein stipulated.”
This provision should not, in our judgment, have been construed as warranting the plaintiff in refusing settlement for the chairs on the ground that they did not conform with a warranty not contained in the written agreement. All that was contemplated by the provision was to guard against errors in measurement, or negligence in shipping a chair which could not be placed in the opera house in conformity with the plans and specifications, — such an error as would be apparent at once upon the attempted performance of the contract by the furniture company. This is evident from the fact that it was agreed that settlement should be made by note' due in 90 days. It is clear that it was not intended that defects afterwards ascertained by putting the chairs to use should be corrected by retaining, in settlement, double the cost of the chair.
If it be assumed that there was a warranty in addition to the specifications, the plaintiff had three remedies: He might, independently of the provision quoted, have refused
I concur with the Chief Justice upon the point discussed by him.
Concurrence Opinion
I concur with Mr. Justice Montgomery in his conclusions upon the points discussed.
I am not satisfied that replevin can be maintained under the facts stated by Mr. Justice Grant, and for that reason, also, the verdict should have been directed for defendant.
I do not agree with Mr. Justice Grant that the testimony in this case shows that plaintiff, before the replevin suit was brought, had surrendered possession of the chairs in controversy to defendant, or had voluntarily put defendant in possession of them. The controversy respecting the chairs had been going on for a year or more, and other litigation had been had upon the same subject. The contract was dated October 2, 1890. The chairs had been furnished prior to March, 1891. The claimed surrender of the chairs to defendant occurred
“ It is claimed on the part of the defendant that plaintiff substantially delivered the goods to it, of his own free will and accord. It is claimed On the part of plaintiff that he did not deliver the chairs to defendant. It is a question for you to determine, because it is the law that if, just prior to bringing this suit, of his own free will and volition, he delivered these chairs over to the company, he cannot maintain the suit. If it was his'intention to have the company go and get the chairs, and let it take them as a matter of right on its part, then he could not maintain this action. If, on the other hand, it amounted substantially to this: that he said, 'There is the opera-house door open, but you must not take these chairs,’ and forbid it to take them, and it appeared properly so understood,— then it is not material whether a demand was made or not. What yon want to determine is what the intention of plaintiff was, as manifested by all the circumstances in the case.”
The court was clearly right in this instruction. The-jury were entitled to take into consideration the understanding of the parties, from all the conversations, and the circum
I concur with my Brother Montgomery on the other points in the case.