190 Mich. 247 | Mich. | 1918
The defendant John Huebner resides in Saginaw, and is- engaged, among other things, in the sale of automobiles. In the early part of the year 1913 he sold to plaintiff a car manufactured by the Thos. B. Jeffrey Company, a corporation of Kenosha, Wis. The price of the car was $1,900, which the plaintiff paid. After using the car for a time the plaintiff says that he found it was not in accordance with the warranty under which it was sold, and he claims that he thereupon
In considering these alleged errors it must be remarked that a very broad construction has been given,
Upon the discontinuance as to the Thos.'B. Jeffrey Company the case proceeded without any formal amendment to the declaration, and judgment was entered against defendant Huebner alone. His counsel claims that this was a fatal variance, and that the case could not have legally proceeded to such judgment without an actual amendment to the declaration charging a several liability in the place of the joint liability. Section, (b) of Circuit Court Rule 27 seems to contemplate such amendment. But by paragraph (c) of the same rule the jury, where an action is brought against several defendants, may render a verdict against those liable without a discontinuance as to the other defendant or defendants, and in such case no actual amendment seems to be required. Either the variance is disregarded or the amendment is assumed to,have been made. Root & McBride Co. v. Salt. Ass’n, 140 Mich. 441 (103 N. W. 844). In discontinuing against one defendant, in the course of the trial, and proceeding against the other, the plaintiff did no more, in effect, than the jury would have been authorized to do in rendering their verdict; and it would seem that the amendment might be assumed as well in the one case as in the other. While it is a general rule that an amendment to be effective should be actually made (Ballou v. Hill, 23 Mich. 60; Harris v. Thomas, 140 Mich. 462 [103 N. W. 863); Carroll v. Manufacturing Co., 181 Mich. 280 [148 N. W. 390]), yet there are exceptions to this rule.
“We have no doubt that where an amendment is ordered or permitted, and is of such a nature that the record furnishes upon its face all the data for applying it, it may be considered as made, though no verbal changes are made in the pleadings, which are then to be read as if they had been actually amended.” Ballou v. Hill, supra.
But, in submitting the case to the jury, the court evidently did make a mistake in assuming certain facts to have been conclusively established, when, instead thereof, these facts were the subject of sharp dispute. After averring the purchase by the plaintiff of the automobile from the defendant, and that such automobile did not conform to the warranty under which it was sold, the declaration proceeds as follows:
“Whereupon then and there the said plaintiff delivered said car over to the said defendants and demanded the money he had paid them therefor as the purchase price agreed upon. That said defendants, their said agents and representatives, then and there accepted back said automobile, and there and then conceded to and agreed with the plaintiff that said automobile was not as they had represented it to be, but, on the contrary, was defective and improperly constructed, and they then and there agreed to receive back said defective automobile as aforesaid, and then and there took possession of the same as their property. That in consideration of the amount of money paid them by the plaintiff for said automobile as aforesaid the said defendants, their agents and representatives, then and there agreed and promised to deliver to plaintiff a new automobile of similar design and make.”
It will be observed from the reading of the declaration that the action was brought upon the theory that the sale had been rescinded by mutual consent, and that the automobile had been returned to the defendant and accepted by him as his own property, thus leaving in his hands the purchase price which it was his duty to restore to the plaintiff, and that in consideration of such purchase price so in the defendant’s
The very consideration for defendant’s promise, as thus alleged in the declaration, was dependent upon the mutual rescission, and the acceptance back of the car by the defendant. Plaintiff’s testimony tended to prove such rescission and acceptance of the car. The mere breach of the warranty would not have authorized a rescission by the plaintiff alone. Williams Transportation Line v. Transportation Co., 129 Mich. 209 (88 N. W. 473, 56 L. R. A. 939). But the rescission was stoutly denied by the defendant, who insisted throughout that the car had never been returned to him, and that he had never received or accepted it. It was his contention that the plaintiff had remained in possession and control of the car throughout; and he denied ever having agreed to receive the car back or to furnish a new one. Whether the car had been returned to the defendant and received and accepted by him as his own property became, therefore, a material and controverted issue which should have been left to the determination of the jury. But, instead of so leaving it to the jury, the court treated the return and acceptance of the car as an established fact, and in that behalf instructed the jury as follows:
“Therefore, gentlemen of the jury, I think the question for your decision is fully before you. You understand that the issue to be decided by you as a final issue is whether after Mr. Rimmele took this car to run it as he did he made complaints about its being out of order, and then had the contract or the discussion with the defendant, and the defendant agreed to furnish him a new car. That is the question — whether he did or not. If you find that he did, in manner and form as claimed by the plaintiff, then he is liable here for the amount of money that that car was worth.
“It clearly appears in this case that the car was returned before this suit was brought, and it was fully*254 turned over to the defendant. Defendant claims there was no intention of getting a new car, because the party who brought it back tendered it to Mr. Rimmele, and it had been refused by him; that the car returned was the same car that was taken away. Therefore, if you find that there has been an agreement made, as I have explained to you, and as has been claimed by the plaintiff, your verdict will be for the sum of $1,900, with interest since the commencement of this suit, or such sum, if'you find from the evidence that any other car was mentioned than a ‘Cross Country Rambler/ why, then it is for you to so find.”
Some of .the negotiations relied upon by plaintiff to establish his case were had with a. son of the defendant, and it is insisted by the latter’s counsel that there was no such proof of the son’s agency as made his promises and actions, if established, binding upon defendant. We think, however, that there was testimony tending to establish the son’s agency, and that this feature of the case was properly left to the jury.
It is also claimed by defendant that the court instructed the jury to so answer certain special questions submitted by him that the answers would agree with their general verdict. But we think the record is not clear as to the court’s instructions in this respect, and the point will not be considered.
For the error pointed out, the judgment is reversed, and a new trial ordered.