Savercool v. Farwell

| Mich. | Oct 7, 1868

Christiancy J.

The contract of April 9 was properly admitted in evidence. It did not change the mode or rate of payment mentioned in the prior contract of January 9.' By the prior contract one hundred thousand feet of the lumber were to be delivered by the 15th of May, and payments to be made as follows: Eighty per cent, on each lot of fifty thousand feet, and the balance on delivery of the whole amount. By that of April 9, one hundred and fifty thousand feet of the lumber mentioned in- the prior contract were to be delivered by the first day of May, and it is silent as to the mode or rate of payment for this lumber.

We can not assume, as the counsel for the plaintiff in error seems to have done, that the one hundred and fifty thousand feet must all be delivered at once. On the contrary, it is much more probable, in the ordinary course of such business, that it would be delivered in parcels less than the whole; and there would then be successive periods in the course of delivery, at which the lumber delivered would amount to fifty thousand feet.

If this would not be so under the last contract, it would not under the first.

If the quantity delivered up to any particular period amounted to more than fifty thousand feet, the excess would not be counted until it amounted to another fifty thousand.

The court properly excluded the evidence tending to show that prior to April 9 (the date of the last contract), there was an agreement by parol between plaintiff and defendant that the lumber mentioned in the contract of January 9 should be inspected at defendant’s mill, and that plaintiff did inspect portions of it there prior to April 9, and pronounced it correct. The contract of April 9 was in writing, and expressly provided that this same lumber (mentioned in the contract of January 9) should be inspected on the dock, at the place of delivery in Detroit, and (in effect by reference to the contract of January 9) that the inspection should be made by W. E. Warriner, or some competent inspector he might choose. If the parties are not to be understood to have merged all prior verbal understandings or agreements in the subsequent written agreement upon the same subject matter, there can be little use and no safety in written contracts.

It seems that in attempting to carry into effect the provision for inspection, it was found that Warriner could not attend to it, and the plaintiff gave evidence tending to show that, instead of having Warriner choose an inspector, the parties themselves agreed that one Hough might inspect the lumber in place of Warriner, and that he did inspect it under a written order of the defendant. This evidence was objected to on the ground that it tended to prove another and different contract from that set out in the plaintiff’s declaration, which followed the written contract, alleging that the lumber was to be inspected by Warriner, or some competent inspector he should choose.

We do not think this new substitution of one inspector for another, in the course of performing, or attempting to perform, the contract, constituted such a material variation of the substance of the contract as should require it to be set out in the declaration; nor do we think the proof of it can be treated as a variance, or that the defendant could have been surprised or misled by it. The substance of the contract, or the essential obligation created by it, was, on the one side, the delivery of certain amounts of lumber of the specified descriptions, and, on the other the payment of the agreed price. The inspection was the test agreed upon for determining whether the lumber met the calls of of the contract. It was binding, it is true, unless waived or modified by the parties. But it might be waived, in whole or in part, or another inspector substituted, without altering the essential obligations of the contract. In an action for not accepting goods sold, where the declaration averred that the defendant bought of the plaintiff a certain quantity of rice, according to certain conditions; and it appeared in evidence that, in addition to these conditions, the rice was sold by sample; it was held not to constitute a variance, the words “per sample” not being a description of the commodity sold, but a mere collateral engagement that the goods should answer the description of a small parcel exhibited at the sale.— Parker et al. v. Palmer, 4 B. and Ald. 387, and see Clarke v. Gray, 6 East, 564.

The plaintiff, in the present case, set out copies of the two written agreements in his declaration, instead of describing them by their legal effect; but he did not allege, and the nature of the action did not require him to allege, whether the lumber was inspected or not; nor was any breach assigned upon this provision. The gist of the action, and the only breach assigned, was the non-delivery of the lumber. The question of actual inspection could not therefore arise upon the pleadings; and, as a matter of proof, the evidence of inspection would naturally come from the defendant, in the attempt to show performance.

Such incidental matters of waiver or substitution frequently arise in executing the provisions of contracts; as, for instance, a contract for the delivery of so many bushels of first quality of wheat, or so many cords of a particular kind of wood; the parties may mutually assent that a certain number of bags shall be taken for so many- bushels, instead of measuring or weighing it, or that a certain number of loads shall be received for a certain number of cords; and the party who is to receive the article may assent to receive an article somewhat inferior, as a performance of a stipulation for a better. And many such unimportant changes may occur under a single contract. In the present case the parties might have agreed upon a different inspector for each load, as it arrived. But to require all such incidental variations, arising in the course of performance, to be stated in the declaration, as a part of the contract, would lead to great prolixity without any corresponding benefit.

It was insisted, by the defendant below, that the contracts did not make the inspection of the lumber conclusive upon the parties; and he offered evidence tending to show that some of the lumber rejected by the inspector was such as came within the description specified in the contracts. We think the court was right in excluding the evidence. If the inspection was not to be conclusive, we are at loss to perceive how it could have any intelligible effect under the contract.

The witness Walker, on the part of the plaintiff below, testified that he was engaged in the lumber business at Wayne (which is some eighteen miles in the interior, by rail road, from Detroit), and knew the value of such lumber at Wayne, which he stated to be $30 per thousand feet. He stated that he did not know the market value at Detroit, though it would be higher at Detroit.

This testimony bore upon the question of damages. The defendant requested the court to charge the jury that, if they should find Walker did not know the market value of the lumber at Detroit, they must reject his testimony as to what such value was.

As it was not, and is not pretended that lumber was as high in Wayne as in Detroit, it is quite clear that the tendency of this evidence was to fix the damages below, rather than above what the plaintiff was entitled to recover. It-could not prejudice the defendant. The instruction was, therefore, properly refused.

But we think the court erred in rejecting the evidence offered by the defendant below, showing the amount of lumber delivered which the plaintiff refused to inspect, and that it was, in all respects, up to the requirements of the contract, as to quality and dimensions. “ The evidence tended to show that the lumber was brought in and unloaded under the plaintiff’s orders, and that plaintiff declined to inspect (by which we understand he declined to have it inspected as the other lumber was) a quantity of the one inch sycamore lumber, because there was thin lumber on top of it.” If this thin lumber interfered with or prevented inspection, the plaintiff below would seem to have been responsible for that impediment, and should have removed it; and by failing to do so (so far as appears) before he brought his action, we think he absolved the defendant from this stipulation of the contract, and left him at liberty to prove, if he could, the quantity of such lumber, and that it was such as met the calls of the contract.

For this error the judgment must be reversed, with costs to plaintiff in error, and a new trial awarded.

The other Justices concurred.