28 Mich. 349 | Mich. | 1873
The questions in this case mostly arise upon the several instructions given to the jury.
The first was erroneous, because it assumed that all the evidence tended to prove the same contract, and that that was the contract declared upon. Three witnesses testified to their understanding of the agreement: one, that the
wool was to be delivered at the convenience of defendant; another, that the delivery was to be within two weeks; while defendant testified that plaintiffs’ agent, on the Friday or Saturday of the week when the bargain was made, was to notify him when delivery should take place. The court could not assume that the jury would believe one of the witnesses rather than another, and the contract, as testified to by defendant, was clearly not such as had been counted upon.
The third would have been proper enough had there been any evidence in the case to base it upon; but we find none. It was not shown that any purpose the plaintiffs might have had as to marketing or making use of the wool was communicated to defendant.
The fourth was erroneous for the same reason as the first. If the contract was as defendant states it, notice to deliver was essential.
The fifth was correct if the contract declared upon was found established by the evidence.
The sixth was erroneous. The plaintiffs, if entitled to recover at all, were entitled to the value at the time when delivery should have been made; but on what theory defendant could have been held responsible for the price at any prior time, when defendant was in no default for failure to deliver, we are unable to perceive. A vendor cannot be supposed to undertake that the goods he sells shall not depreciate in value before they are called for.
■ The plaintiffs seem to have claimed that they were entitled to recover the highest market value between the time of the purchase and the time of bringing suit, and they were allowed to give some evidence on that theory. This was clearly wrong in going back of any default on the part of defendant, as already shown. But had they Confined their questions to the time between the demand and the commencement of suit, there is no general rule that would entitle them to the recovery they claimed. A party’s right of recovery must be deemed fixed at some time, and he cannot wait for an indefinite period and speculate upon the changes in the market while taking upon himself none of the risks of decline. This would put him in a better position than if he had the property in possession; for then, if he would realize upon it, he must
No general rule can do exact justice in all cases of failure to deliver property on demand to tbe. party entitled, but a recovery which, at tbe time of the demand and refusal, would have enabled the party to purchase other property of the like kind and of equal value at the same place, is, in the absence of special circumstances, as nearly just as any the law can provide for. — Bates v. Stansell, 19 Mich., 91.
The judgment must be reversed, with costs, and a new trial ordered.
