97 Mich. 77 | Mich. | 1893
Plaintiff recovered a judgment for the value of personal property sold to defendant. Defendant appeals.
“Upon the question of whether the amount which the horse, buggy, harness, and robe were sold for was to operate as a payment upon this amount of personal property, you are instructed that, if there was an understanding*79 between the parties at the time of the sale that it should be so applied, then it must be so applied by you, and what either of them may have done afterwards, if there was such an understanding between the parties, could not affect the question one way or the other. If there was no such understanding or agreement between the parties as to its application at the time when the property was taken, then Mr. Knowles would have a right to say how 'that should be applied. If it was understood that it was to operate in payment of the indebtedness which he (Knowles) had, Mr. Knowles would have a right to say how it should be applied; and any application which might have been made by him would bind the parties.”
This is a correct exposition of the law upon the subject. But the circuit judge evidently overlooked the undisputed testimony to the effect that there was an agreement to apply the personal property upon the plaintiff’s claim. The plaintiff testified as follows:
“Q. Did he ever let you have any personal property which was agreed to be applied on this?
“A. He let me have a horse and buggy and robe. •
“Q. Was that to be applied on that $300?
“A. I suppose so. I agreed to take that as far as it went.
“Q. Towards this personal property?
“A. Yes, sir.
“Q. How much was the mare worth?
“A. $140'.
“Q. Any price agreed upon?
“A. I understood the price was to be $140.
“Q. What was said about the price of tiie mare?
“A. He offered me the mare for $140.
“Q. And you took it at that time?
“A. Yes, sir.
“Q. Now, you had a buggy, did you?
“A. I got a buggy of him.
“Q. How much was that to be?
“A. $60. '
“Q. What else did you have?
“A. A single harness.
“Q. Was that to be applied on this personal property?
•‘A. I suppose so.
*80 "Q. How much was the single harness?
“A. $18.
“Q. Did you have anything else?
“A. A robe.
“Q. What was the robe.?
“A. He charged me $9 for it.
“Q. Now, there was- a mare, $140, a buggy, $60, a harness, $18, and a robe, $9?
“A. Yes, sir.
"Q. And that was applied, so far as it would go, upon, the personal property?
“A. I suppose so.
“Q. Was there a talk there?
“A. Yes, sir; it was talked that way that day.”
This was the only testimony in the case upon the subject of whether there was or was not any agreement that the personal property purchased of the defendant should apply upon the claim for personal property sold him. It would appear to be open to but one construction, and the jury should have been instructed that this constituted an agreement, and bound the parties.
For this error the judgment should be reversed, and a new trial ordered.