140 Mich. 441 | Mich. | 1905
The plaintiff sued the Walton Salt Association, Limited, and the G. N. Skinner Salt Company, for the purchase price of $1,800 worth of salt bags. The declaration was the common counts, accompanied by a bill of particulars. The testimony shows an order for bags dated April 22, 1902, signed, “Walton Salt Association, Ltd. Angus Smith,” shipment to be made to the “Walton Salt Association, Ltd.” A second order, dated June 20, 1902, signed G. N. Skinner, directing goods ordered therein to be shipped to G. N. Skinner Salt Company, Detroit, and charged to Walton Salt Association, was also shown. Upon the trial the plaintiff, through its attorney, disavowed any claim that there was a"joint liability by the defendants, but claimed that one or the other was liable, and asked that it be left to the jury to determine which was its debtor. It seems to have relied upon its claim against the Walton Salt Association, asserting that
At the close of the testimony the defendant asked the court to direct a verdict against the plaintiff, but the case was left to the jury upon three theories:
1. That the Walton Salt Association had contracted to pay for the bags.
2. That it had led plaintiff to believe that Skinner was its agent authorized tq order bags for it.
3. That there was a custom of the trade or parties under which the Walton Salt Association would be chargeable with the bags.
The defendant has appealed from a judgment for the plaintiff. Defendant contends:
1. That there was a misjoinder of defendants, which entitled it to a verdict.
2. There was neither contract authorizing a purchase of the bags on the account of the Walton Salt Association, nor a ratification of such purchase.
3. There was no proof of a custom of the trade binding upon the Walton Salt Association, and such a custom, if proved, would be unreasonable and void.
The declaration, in form, charges a joint contract. To prove it, evidence was required showing that the two defendants, upon the one part, made a joint contract with the plaintiff, upon the other. Before any proof was offered, the plaintiff’s counsel abandoned such? a claim; saying that the two defendants did not contract with him, but one or the other of these defendants was the contracting party, and he did not know which, and wished to leave the question which one was liable to the jury. In other words, he admitted that, knowing that only one person had made a contract, he had joined two, alleging a joint contract, relying on Cir. Ct. Rule 27 as authority for the practice. Alleging a joint contract, though he knew it
The evidence shows that one of the orders was made by the defendant association at an interview between Smith, the secretary of the Walton Salt Association, Skinner, and plaintiff’s agent Gollier, on April 22, 1902, but it provided that it should be canceled in case plaintiff could not furnish a “ Bates Valve Bag Machine ” by June 1, 1902. The machine was not furnished, and the bags were sent to the Walton Salt Association after that date. There is little dispute, however, that the bags were received upon both orders, and retained by the Walton Salt Association until its negotiations with Skinner came to an end, when it was determined by the association that it did not want the bags. That it knew that the plaintiff expected to furnish these bags upon Skinner’s order, but upon its credit, is legitimately inferable from the proofs; and the court would have been justified in so stating to the jury, for there is no evidence to the contrary. It is therefore unimportant that the court allowed the doubtful question of custom to go to the jury, inasmuch as the testimony as conclusively shows that it received and kept the goods for a long time, and until it found it would have no use for them, by reason of the failure of its negotiations with Skinner. As late as June 7th it received a letter and some sample bags, and on June 27th sent plaintiff some salt to use in determining the size of bags, and later all of the bags were received by it; and not until November 7th did it inform plaintiff that they were held subject to its order. It is true that there was testimony that the Walton Association informed Skinner that it had received, but would not accept, bags, but this did not discharge its duty toward the plaintiff of notifying it if it intended to rely upon its alleged cancellation of the first order.
To recapitulate: We are of the opinion that the undis
The judgment is affirmed.