55 Mich. 606 | Mich. | 1885
Maxwell sued Kellogg before a justice of the peace, and recovered a judgment for eighteen dollars. The declaration was oral, and as taken down by the justice was as follows: “ The plaintiff declared verbally in assumpsit •on special contract made between the parties, by which the ■defendant, in consideration of the price agreed upon between them, received, sold and delivered to the plaintiff ten peach trees, which peach trees the defendant contracted and agreed with the plaintiff should and were to be of five Hale’s Early and five Early Crawfords. The plaintiff paid to the defendant the consideration of said trees, relying upon said representation of said defendant that said peach trees were five of Hale’s Early and five of Early Crawfords. Said plaintiff took said trees and set them out and cultivated the same for •over three years, but said trees were not as represented, but were and are seedlings, a natural fruit, to plaintiff’s damage three hundred dollars.” Defendant appealed to the circuit, where the cause was tried before a jury, who found a verdict for defendant. Plaintiff brings the case here and assigns error upon the rulings of the circuit judge in the admission of testimony and in the instruction he gave to the >ry-
On the trial the plaintiff gave evidence tending to establish the cause of action set forth in his declaration. As matter
The principal ground of error assigned and relied upon before us relates to the admission of testimony for the purpose of showing that there is an uncertainty or difficult}' recognized among fruit-tree growers in getting trees true to name. Several of the witnesses were asked by the counsel for the defense the following question : “ Is there any difficulty in the second man — that is, the man who purchases from the original party who does the budding — is there any difficulty in his telling what the variety is which he gets by inspection ? State fully.” And also the following question; “ Is there any uncertainty or difficulty recognized among fruit-growers in getting trees true to name?”
Reversed and a new trial granted.