106 Mich. 445 | Mich. | 1895
The defendant is engaged in the manufacture of vehicles of various kinds at Kalamazoo, this State. It employs a great number of men, and keeps constantly on the road a large number of salesmen. It also has a branch salesroom at St. Paul, Minn., and many salesmen are sent out from that point. It has no facilities for making axles, but purchases them from manufacturers. Prior to September 17, 1892, it had purchased its axles from the Sheldon Axle Company, of Wilkesbarre, Pa. Many of these axles were made from special patterns, to be used on special styles of vehicles, and it was not possible to use any other on buggies and carriages so made. These styles had become staple in the business-.
In September, 1892, a representative of the plaintiff company called upon the defendant, and solicited its .trade; and a contract was entered into by which the defendant agreed to purchase from plaintiff all the axles it was to use in its business up to 10,000 sets. In the contract it was specified: “Axles guaranteed to interchange with samples sent of Sheldon’s axles.” Mr. Lay, the secretary of the defendant company, testified, under
“I told Mr. Black that it meant a good deal to us to make a change of this kind, and I says we cannot think of changing unless we could get these axles just the same as we have been getting them. I says the Sheldon Company, they always sent these bent to form, to fit our patterns, and I says, ‘You can readily see the necessity of that.’ I told him that we had our axle beds cut out iu large numbers, and we had to have our axles to fit that shape. I called his attention to our end spring buggy, which has a drop axle. That was an axle that we were particular about. ‘Oh, well,’ he says, ‘we. can do that just as well as Sheldon, and will do i't for you. All we want is your samples. Now, before you send for axles, 'you fix them up, — your samples,- — and send them along; we will shape them to the axles just to your pattern.’ And he wanted to know about what time we would want our axles to come in. I told him that during November and December we were very busy with cutters, and we would have to have our axles to come in so we could commence on them right after we got through our cutters, probably the last of December or the first of January. ‘Well,’ he says, ‘you will have to get in your specifications then by about the first of December.’ I told him Í thought we could do that. So we drew up the contract, and Mr. Lane signed it.
“Q. Well, have you stated now all the talk that you recall that you had at that time with him?
“A. Well, all that was material in regard to that. Of course, Mr. Black went on to tell— He said that he was taking a good many contracts at that price that he was making, — seemed to catch them. It was a price below what the others were selling. * * * I told him we had been getting our axles from the Sheldon Axle Company of Wilkesbarre, Pa. We had gotten our axles of them (Sheldon) the year before.
“Q. Now, you may state what, if anything, was said at that time about the setting at the collar when Mr, Black was there.
“A. Well, that w-as — We referred to -the number 53 axle; thait is our end spring buggy. That was a drop on the axle, and we told him that we had to have it set right at the collar. We explained to him why. The shape of*448 the axle is different. It was made on a kind of a little arch, — a drop; and, unless it is shaped right at the collar, the wheel won’t run on a plumb spoke.”
Mr. Black was then and there shown the axles which were afterwards sent his company as patterns from which to make sucih axles. The matter was gone over somewhat at this time, and the contract entered into between the parties. The defendant claims if was induced by Mr. Black to enter into this contract because of the reduction in the price of the axles which he made, and because of his representations and promises that the plaintiff would set the axles at the collar, bend them, and make them of the same shape and style for defendant and furnish them to it just as the Sheldon Axle Company had done the previous year.
The defendant sent samples and specifications to plaintiff December 6, 1892', and on .the same date sent an order for a large number of axles. The plaintiff received defendant’s samples December 17th, and on the 24th replied as follows:
“Pittsburg, Pa., December 24, 1892. “Michigan Buggy Company,
“Kalamazoo, Midi.
“Gentlemen: Your favor of 22d. It is simply a question of time, gentlemen. Had you sent the samples right along, as you should have done, immediately after the contract was made, and allowed the specifications to follow within the time specified in contract, it would have been all right. To get out all these patterns and forms will require a month to six weeks of time. . We thought you would rather have this order come regular. Which shall it be?”
Defendant replied to this letter as follows:
“December 26, 1892.
“Gentlemen: I am in receipt of yours of the 24th, and in reply will say that we want the axles as per agreement, made to fit our forms, bent to shape as per sample.. We must have them right away. We know it does not take*449 a month or six weeks to get out a form to fit these axles to,”
Plaintiff replied:
“December 28, 1892.
“Dear Sir: Your letter 26th. Replying to same, we beg to say that there is no agreement, either in the contract or outside of it, providing for the forming of your axles to pattern. There would be no serious objection to this had you advised us and sent the samples promptly after the contract was made. We are now very busy, and it will not be possible to get out these form® and make preparations to do the work in less than the time stated, — a month or six weeks. You-state that you must have the axles promptly. It would not now be possible to make shipments in less than thirty days, regular axles. Give us your definite answer at once, stating whether you will accept the goods regular shapes or not.” .
To this defendant replied:
“December 31, 1892.
“Gentlemen: We are in receipt -of yours of the 28th. Please hurry out the axles ordered, regular; and we want those ordered shaped to pattern, shaped as ordered, even if it takes a month or six weeks.”
Plaintiff shipped, all told, 1,328 sets, of which 505 sets were returned, because they were not made according to the samples, leaving 823 sets retained by defendant out of the 3,575 sets ordered. No axles were received by defendant for a period of two months and eighteen days after the order was sent in by defendant, and the first axles received were not made according to the samples sent, and had to be returned, or were all hinds and no fronts, or all fronts and no hinds, and therefore absolutely useless to defendant unless they were matched up.
The defendant claims to have had on hand a large number of orders and contracts for vehicles, and, because of the failure of plaintiff to comply with the contract, the defendant was not only hindered in its business, but
The plaintiff made claim for the payment of the axles sent, which was refused, and this action was brought upon the contract. Defendant pleaded the general issue, and gave notice of recoupment of damages. On the trial the jury returned a verdict in favor of defendant.
The notice is not required to contain all the requisites of a special plea under the former practice, nor is it required to contain the substance of a special plea, or be good on general demurrer. Cresinger v. Reed, 25 Mich. 450; Rosenbury v. Angell, 6 Mich. 514; McHardy v. Wadsworth, 8 Mich. 349; Bailey v. Kalamazoo Publishing Co., 40 Mich. 254; Browne v. Moore, 32 Mich. 257; Farmers’ Mut. Fire Ins. Co. v. Crampton, 43 Mich. 421; Briesenmeister v. Supreme Lodge K. of P., 81 Mich. 525. The notice not only apprised the plaintiff of the nature of the defense to be made, but specifically set forth the manner in which the profits were lost. It does not leave them speculative or uncertain, but shows that the loss of profits is upon actual contracts and orders which defendant had taken relying upon plaintiff to furnish the axles. In Briesenmeister v. Supreme Lodge K. of P., supra, the rule was stated as follows:
*452 “The sole test of the sufficiency of a notice of special matter of defense is that it shall apprise the plaintiff of the nature of the defense relied on, so that he may be prepared to meet it and to avoid surprise on the trial.”
We think the notice was sufficient.
Judgment is affirmed.