Farmers' Handy Wagon Co. v. Newcomb

192 Mich. 634 | Mich. | 1916

Person, J.

(after stating the facts). The trial judge correctly construed the meaning of the underwriting appended to defendant’s order. To “reconsider” is defined by Webster as the right—

“to consider again; review with care, especially with a view to a reversal of previous action; as, to reconsider a determination.”

The order with the acceptance by plaintiff became a contract subject to a right, on the part of defendant, to withdraw from it within the time stated. It did not require an express confirmation by defendant.

P It was also necessary that notice of the withdrawal pr cancellation should have reached plaintiff in order (to be effective and sufficient. Anson on Contracts (2d Am. Ed.), pp. 32, 33; 1 Elliott on Contracts, §§ 37, 38; 1 Mechem on Sales, § 258. Placing such a notice in the mails, properly addressed and with postage prepaid, undoubtedly creates a presumption that it is duly received; but the receipt of the notice by plaintiff was denied by such officers and agents of the company as usually received its mail, and whether it was received, if sent, became a question for the jury.

The circuit judge was also right in holding that the shipment of the silo by freight, except the piece of felt, and the transmission of the felt by express, was a substantial compliance with the terms of the order. The defendant admitted that he did not reject the silo because the felt did not accompany the other parts; and the order expressly provided that the defendant would notify plaintiff if any part, or parts, should be found lacking or defective, and would allow plaintiff a reasonable time in which to make up such shortage or replace such defective part.

Counsel for appellant argue that, even if defendant did have the silo shipped from the warehouse at Grand Rapids to Williamsburg, that was a matter between defendant and the railroad company from which plaintiff can claim no advantage. This is not a tenable position. Even if defendant had retracted and canceled his order, and even if plaintiff had received notice of such cancellation, the shipment of the silo thereafter to defendant was an offer on the part of plaintiff to sell it to him in accordance with the terms of the order. And if defendant thereafter exercised acts of ownership over it, and had it shipped to Williamsburg for his benefit, that was an acceptance which made him liable for the purchase price. Richards v. Burroughs, 62 Mich. 117 (28 N. W. 755) · 1 Mechem on Sales, § 243; Williston on Sales, § 77.

Upon the trial defendant produced as witnesses one George Dean and his wife, who testified that they were present at defendant’s home when he wrote a letter to the plaintiff company relative to the silo. Each was asked what defendant said about the letter at the time he wrote it, or immediately thereafter, and whether or not he said it was a letter canceling his order for the silo. Answers to these questions were objected to and excluded. Both witnesses were permitted to testify that they saw defendant write the letter and saw him mail it. Mrs. Dean said that she read the address upon the letter, and that it was directed to plaintiff. But neither one read the letter itself, nor knew anything about its contents except what defendant had told them. The defendant had testified to writing and mailing the letter, and had produced what he claimed to be a copy, which had been received in evidence. We think the testimony sought to be elicited from the witness Dean and from his wife was properly excluded. It was an attempt on the part of defendant to corroborate his own testimony by his own self-serving statements, and the statements were inadmissible.

We have carefully examined all other assignments of error, and" do not find any that require a reversal of the judgment.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.