112 Mich. 579 | Mich. | 1897
This is an action of replevin brought by plaintiffs to recover a quantity of iron they claim to have bought of defendant. Trial was had before the circuit judge, who made a finding of facts and of law. Both parties appeal. The iron involved consisted of four piles of iron which lay in the yard of defendant. The agent of the plaintiffs saw the iron June 19, 1895, and negotiated for its purchase, and the parties agreed upon terms. To indicate their agreement, the following paper was drawn:
“Office of M. Braudy, Dealer in Old Rails, Scrap Iron, and Metals. Office and Yard, 10 to 20 Alabama St.
“Grand Rapids, June 19, 1895.
“Jos. Joseph & Bros.,
Cincinnati, Ohio.—
“ Gentlemen: We hereby accept the offers of your Mr. Leonard Joseph for the following material, f. o. b. cars Grand Rapids, we guaranteeing a rate of $1.80 gross ton to Muncie, Ind., and Marion, Ind. (Grant Co.): From (650) six hundred and fifty tons to (700) seven hundred tons of No. 1 wrought, which has been seen by Mr. Leonard Joseph, at the price of $9.55 (nine dollars and fifty-five cents) per net ton, f. o. b. Grand Rapids; also, about ( 30) thirty tons heavy mixed country steel, as seen by Mr. Leonard Joseph, at the price of $8.25 (eight dollars and twenty-five cents) per gross ton, f. o. b. Grand Rapids; one car load of horseshoes, at $9.55 (nine dollars and fifty-five cents) per net ton, f. o. b. Grand Rapids; and one car load of flat steel sheet car rails, at $8.65 (eight dollars and sixty-five cents) per gross ton, f. o. b.*581 Grand Rapids, or f. o. b. point where rate is equivalent; terms cash. We also agree to cancel all claims in regard to the transaction of iron and steel rails shipped to Lockport, Ills., Washington, Ind., Cincinnati, O., and Newburgh, O.
“Tours, truly,
“M. Braudy.
“Accepted: J. J. & B. per Leonard Joseph.”
The paper was delivered to Leonard Joseph, who took it away. Some correspondence ensued after this between the parties. The iron was not shipped. Plaintiffs deposited enough money in a bank at Grand Rapids to pay for the iron, which they authorized their attorney to draw out, and notified defendant that the iron would be paid for as fast as weighed, and requested him to ship the iron. He refused to do so. No'formal tender was made of money to pay for the iron, and this suit was brought. The circuit judge found that the title to the iron passed to the plaintiffs, but that they were not entitled to the possession of the iron at the time the suit was brought, because no payment or sufficient tender was made.
The first important question to be considered is, did the title to theu property pass from defendant to plaintiffs ? As bearing upon this feature of the case, in addition to what has already been said, the record discloses that June 26, 1895, defendant wrote plaintiffs, among other things:
“ I have sold No. 1 wrought, and I told Leonard Joseph that I will ship the two piles as they run, which Mr. Leonard Joseph has seen,-one pile that lies in the shop, and one that lies in the yard. * * * All that you have to do is to order me to ship so many car loads to the place you wish it shipped, to your order.”
Later he wrote:
“Now, what I want you to do is to release me from the $1.80 rate, and I will ship the iron.”
Still later he wrote:
“The iron, if you want it, has got to be shipped right off, as I do not sell iron to be delivered two or three months after.”
The defendant waived a return of the property, and the trial judge gave him a judgment for over $7,000. The record shows that, after the writ of replevin was issued, the iron was not removed from the yard where it was found by the sheriff, and, though the return of the sheriff shows the iron was delivered to the plaintiffs, it in
Judgment is reversed, and judgment entered here for nominal damages in favor of defendant; neither party to recover costs in this court.