163 Mich. 638 | Mich. | 1910
Plaintiff recovered a judgment against defendants in an action of assumpsit for a balance claimed to be due under a written contract entered into between the parties, whereby plaintiff agreed to furnish, erect, and install for defendants an electric passenger and freight elevator in the building in the city of Lansing occupied by defendants in their business of conducting a department store, for a consideration of $2,000, to be paid, one-third upon arrival of material, one-third upon completion, and one-third 30 days after completion and acceptance.
There is no dispute about the terms of the contract, nor that there remains a balance unpaid of $153.83. The dispute in the case arises on the claim of defendants, under their notice given with the plea, that although plaintiff agreed and guaranteed every part of this electric elevator in all its parts to be of first-class material, and erected in a workmanlike manner, and that its lifting capacity should be 2,000 pounds, yet the electric motor was not new or of first-class material when installed, nor the work or installation as agreed; but that theunotor was second-hand and
The case turns upon the quality and condition of the motor furnished by plaintiff at the time of its installation.
Defendants have brought the case here for review, asking for a reversal on account of errors committed during the trial.
We will first consider assignments of error relative to the admission or exclusion of evidence. The record shows that defendants’ witness, Cable, an electrician, saw this elevator in operation at least two or three dozen times, and had examined the motor when it was being repaired. Several errors are claimed to have been made in excluding his testimony. On examination, we find that this testimony relative to the kind of motor this was, its condition, and his opinion that it was second-hand was finally admitted. He had qualified sufficiently to give his opinion upon that question. He was asked later:
“ Prom the way you saw the machine operated the different times you were there, and what you saw of the machine or motor, and the elevator, what could you say as to whether it was or was not properly operated ? ”
The witness was not allowed to answer.
This elevator was operated by the power generated by the motor in question. The witness was an electrician. The question was directed to the method of operating this
The error relied upon relative to striking out an answer by defendants’ expert witness, Slaughter, where he says: “ It was an old, worn-out, second-hand motor,” requires consideration. The testimony of this witness was taken by deposition. The record shows that the part in which the above sentence occurs was re-offered after part of the deposition had been read. This witness was thoroughly acquainted with this motor, having repaired it five or six times. He gave in detail the condition of the motor, explaining what its defects were, what conditions he found in it which showed defective insulation, and old defects covered with plaster of paris, paint, and varnish/ What the original objection was, or the reason for striking out the above sentence, does not appear. It is argued that it could not be prejudicial, because a like statement appeared earlier, without objection, in his deposition. From this record, we cannot say that in striking out this answer, it was not intended to strike out the other. If the court was correct, that would follow logically. A fair inference is that it was so intended. Even if it were not, it was a material and proper part of the answer to a question relative to the judgment of witness upon the value of the motor furnished. It was error to strike it out.
In this case, plaintiff admits that defendants were entitled to show: (a) the defect or defects, if any; (b) the
The testimony of the expert witnesses above discussed tended to prove the first of these contentions, and tended to show that these defects existed at the time of the installation of the elevator. There was sufficient warrant for its submission to the jury. Such facts could be shown by the necessity for repairs to the motor soon after it was installed, the condition of its parts when they were removed, and the frequency of repairs required, based upon the condition of the motor. No expert on the part of defendants examined this motor when it was put in, and the claimed defects were latent.
Some letters, written by plaintiff to its installing agent, were offered by defendants and excluded. There were other letters offered which had been written to plaintiff by the manufacturer of this electric motor in answer to letters written to it by plaintiff. These last-mentioned letters having been properly demanded were not produced. All of these letters were first referred to and identified by Mr. Reedy, president of plaintiff company, on his cross-examination. He had testified that the motor was new and first-class; that they had never been called upon to make any repairs, and as far as he personally knew, the elevator had not been out of repair since its installation. On cross-examination, he admitted that bills for repairs to the amount of about $80 or $100 had been sent to plaintiff by defendants, and allowed.
In Exhibit E was the statement:
“Also have him accept the elevator; we do not want any come-backs.”
In Exhibit H was the following postscript:
“Be sure to get letter of acceptance of elevator before you leave.”
In Exhibit F appears:
“And if they do not sign it [meaning letter of accept*643 anee], take part of their machine apart so they cannot run it, and until they pay you the balance, keep the elevator shut down.”
Exhibit G is the blank acceptance referred to.
All of the electric company’s letters were offered to show that plaintiff had knowledge of repairs made on the motor, of claims that it was a second-hand motor, and that plaintiff was contemplating sending a man from the electric company to Lansing to examine or repair it. These letters were admissible for purposes of cross-examination of the witness Reedy, as bearing upon his credibility or to rebut his statements above given. It was error to exclude them.
Errors are assigned upon certain portions of the charge, wherein the court said:
“ If the motor was not worthless, then it was of the value of $38?, because there is no evidence showing any value between $38? and nothing.”
The substance of this charge was repeated several times. The court also charged:
■ “ There is no middle ground. If you are not able to say from the evidence in this case that the motor was worthless, then you come to the other evidence in the case relating to its value as given by the plaintiff.”
The court was in error in so charging the jury. Although it is true that no witness on the part of defendants gave the value of the motor at the time it was installed, in dollars and cents, and one or two witnesses testified that it was worthless at the time the repairs were made, the value of the motor at its installation was, under all the evidence, a question of fact for the jury. It had been retained and used by defendants. All of the testimony as to its condition and the claimed necessity for the repairs made upon it was before the jury. The court had already charged them correctly and repeatedly that if the motor was second-hand, yet defendants, by keeping it, must pay what it was worth at the time of installation. The error
Other claimed errors do not require discussion.
The judgment is reversed, and a new trial granted.