202 Mich. 289 | Mich. | 1918
In 1915 plaintiff was a hay buyer in Ottawa, Canada. Defendant resided in Montreal and bought raw furs in and around Sault Ste. Marie. Having had a previous acquaintance of several years the parties met in Ottawa in 1915 and made the following written agreement:
“The party of the first part agrees to pay to the party of the second part the sum of fifty (50) cents per ton on all hay bought by the party of the first part in Chippewa county, Michigan, through the party of the second part. The party of'the fiyst part also agrees to pay to the party of the second part one ($1.00) dollar per ton on all hay bought at seventeen ($17) dollars per ton F. O. B. Montreal, according to the party of the first part’s inspection.”
After its execution both parties came to the Soo to investigate the condition of the hay market. Plaintiff remained a few days and then returned to Ottawa, and defendant, assisted by one Crawford, began buying hay for plaintiff under the agreement. Plaintiff
Counsel insists that this action upon the part of the trial court was error because the question whether defendant owned the hay was a question for the jury. Some claim also appears to be made that the question whether defendant had a lien on the hay was one for the jury.
It was further the view of the court that if defend-, ant were the owner of certain of the hay by reason, of being purchased in his own name and with his own money, there was no basis for the jury to determine what particular hay belonged to him because from his own testimony it appeared that'it had been so intermingled with plaintiff’s hay that it could not be identified. These reasons appear to answer conclusively defendant’s assignment of error in regard to the ownership of the hay.
The judgment is affirmed.