138 Mich. 150 | Mich. | 1904
This case was commenced in justice’s court. The plaintiff filed with the justice a written con-tract, reading as follows:
“ C. Rupert & Sons of Newark, N. Y., bought fromL. Fowles all the hay in stacks on his farm except two stacks which had rain on it after it was cut and before it was stacked for four dollars and fifty cents a ton. Fowles is to cut or rake from stacks all the outside and stained hay not fit for market. Fowles is to help bale and deliver and load on cars at Renton without charge and board men and team and find fuel for engine while baling. Hay to be baled first September or soon after the baler can be got there, R. & Sons to have cars at station to load hay in when baled.”
He declared orally in assumpsit and for breach of contract. The defendant filed a written plea of the general issue and gave notice of set-off. He also set out verbatim the written contract, and averred he was at all times ready to perform it, but was prevented from doing so by the acts of plaintiff, whereby he had sustained damages in the sum of $500, which he would recoup against any claim of plaintiff. A trial was had before the justice, who rendered a judgment in favor of plaintiff. An appeal was taken to the circuit court. A trial was had before a jury, which rendered a verdict in favor of the plaintiff. The case is brought here by writ of error.
The appellee has not furnished us with a brief. The appellant presents 29 assignments of error. We shall discuss but few of them, for the. reason that most of them are eliminated by our view of the effect of the testimony offered on the part of the plaintiff. The defendant was the only one of the firm making the contract who lived in Michigan. He lived in Battle Creek. The hay he purchased was baled and shipped to New York. The evidence discloses that Mr. Rupert hired a man by the name of Brown to bale the hay, and he in turn had as his foreman in charge of his baler a man by the name of McConnell. Part of the hay mentioned in the contract was in one field and a part in another. In one field there was more
The plaintiff testified:
“Mr. Rupert left the premises because I wanted him to go back on the other place and bale the other hay first as he agreed to do. He didn’t do that. He left.”
The agreement here referred to was the talk he had with Mr. McConnell a day or two before the baling commenced at the plaintiff’s. Mr. Carr, a witness for the plaintiff, testified,- referring to a conversation between Mr. Fowles and Mr. McConnell just before the balers left the farm:
“ Mr. Fowles told him that he wanted him to go back and bale this clover hay. The rain would damage it more, and he would have to bale that first. He said Mr. Rupert had told him to go on and bale this timothy, and Fowles wanted this clover baled, and he said if he could not bale the timothy he would move out. ”
On the cross-examination he testified:
“I did not hear Mr. Fowles tell Mr. McConnell that they could not bale any more hay there. We did not go to work, and I could not work unless the rest of them did. Mr. McConnell was not ready to go to work when he came
The defendant testified:
“ I first learned that Mr. McConnell had ceased to bale there on Monday. I was at my boarding place, and learned it from Mr. Fowles. He called me up on the telephone. * * * He called me up, and told me that they had left. He said he would not let them bale the timothy hay and keep the heavy mixed hay and clover, as he called it. He gave no other reason.”
Mr. McConnell testified:
“We went back there on Monday. We were there between six and seven o’clock in the morning. By ‘we’ I mean my men and myself. Mr. Fowles came down a little while after. His men came down a little while after. I told him Mr. Rupert told me to bale out the timothy hay first, and Mr. Fowles told me I could not do that. He said he was not going to let his timothy go and then have his clover hay on hand. He did not say that the clover hay was liable to be more damaged—not to my recollection. * * * I fired up Monday morning to go to work. Mr. Fowles’ men did not render any assistance in baling that morning. They did not remain there, ready to go to work when I got ready. They went back with Mr. Fowles. One of them stayed a few minutes, but he drove away. When I got ready to press hay that day, none of the assistants to be furnished by Mr. Fowles was present. I remained there, and waited for him until about nine o’clock, I think, in the neighborhood. We then went to Mr. McGregor’s about two o’clock, I should think.”
It is true that upon the trial Mr. Fowles said one reason why he forbid the baling of any more timothy was because there were no cars to load the hay into, but his cross-examination shows he had no information upon that
The first assignment of error calling for discussion relates to the admission of testimony tending to show a breach of the contract. It is claimed this was inadmissible, for the reason that the declaration did not sufficiently describe a breach of the contract. No objection was made to the declaration in justice’s court. Defendant pleaded to it, set out verbatim the contract referred to therein, claimed he was ready to perform it and was prevented from doing so by plaintiff, and sought to recoup his damages. He did not misunderstand the claim of plaintiff, but tried it out in justice’s court. If the objection had been made promptly, the declaration could easily have been made more formal. We think it too late now to make the objection.
The next assignments of error requiring attention relate to the admission of testimony bearing upon the question of damages and the refusal to strike it out. The claim is that defendant was not shown to have violated the contract. It is very clear, taking the testimony as a whole, that Mr. Fowles insisted upon deciding the order in which the hay should be baled, and, when his right to do so was not conceded, made it impossible for the employes of defendant to go on with the baling. This he had no right to do. Rupert & Co. had bought all of the hay. They had a right to decide the order in which it should be baled, so long as it did not result in loss to the plaintiff. The plaintiff, then, being responsible for the failure to bale the hay, he is not entitled to damages for a failure to bale and take it away. See Hudson v. Feige, 58 Mich. 148; Rayburn v. Comstock, 80 Mich. 448. We think the court should have told the jury that the plaintiff, under his own
Judgment is reversed, and a new trial ordered.