182 Mich. 264 | Mich. | 1914
Plaintiff recovered a judgment in an action brought by him in assumpsit, commenced by attachment against defendant to recover damages arising from a breach of guaranty contained in written contracts between his assignor and defendant for the purchase of certain bean threshing machines. Defendant has removed the case to this court for review upon a writ of error.
Certain jurisdictional questions in the case which were raised upon certiorari to this court from an order of the circuit court overruling a plea in abatement and denying a petition to dissolve the attachment were passed upon by this court in Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W. 640, 133 Am. St. Rep. 376). In that opinion, to which reference is had, the several counts in the declaration are set up at length, wherein plaintiff’s cause of action is clearly stated.
The material facts in the case are that plaintiff’s assignor, the Arbuckle-Ryan Company, an Ohio corporation, and defendant, a Minnesota corporation, entered into two certain contracts, by the terms of which plaintiff’s assignor agreed to purchase from defendant a certain number of bean and pea threshing machines. These contracts were quite similar in terms, and in each defendant guaranteed the machines sold to be free from inherent and mechanical defects. These contracts were in the nature of written orders by plaintiff’s assignor for a certain number of these machines at certain prices on certain terms, which orders were agreed to by defendant company in writing. The first was dated May 13, 1904; the second, December 26; 1904.
The following is a copy of the second contract:
*267 “Toledo, Ohio, Dec. 26, 1904.
“J. L. Owens Company,
“Minneapolis, Minn.
“Gentlemen:
“You will please enter our order for thirty Owens bean and pea threshing machines, sizes to be 36x54 inches and smaller. Each machine to be complete with belts, Owen stacker, arranged for straight and side delivery, including tally box.
“The above máchine to be sold at a price of 40 per cent, discount from list price of 1904, except re-cleaner with elevator and bagger, which is to be listed at $150 instead of $200, and net price of re-cleaners to be $100 to us.
“All machines to be delivered f. o. b. Minneapolis. The J. L. Owens Company to guarantee the machines to be free from inherent and mechanical defects.
“The Arbuckle-Ryan Co.- agree to pay for these machines January 1, 1906, giving the J. L. Owens Company acceptances as machines are shipped with the privilege of the one renewal of such acceptance, or a portion, if desired, interest on such renewals.
“In consideration of the above order, the J. L. Owens Co. agree to give the Arbuckle-Ryan Co. the exclusive sale of the Owens bean and pea threshing machines in the entire State of Michigan. The Owens Co. to furnish necessary printed matter, blank orders, etc.
“Settlement for the above machines to be made August 1st, and if any subsequent orders, settlement to be made on shipment of machinery.
“Any inquiries received by the J. L. Owens Co. from the best territory to be sent us immediately.
“The J. L, Owens Co. agree to keep a stock of repairs when ordered to be consigned to us, and to be subject to a discount of 50 per cent, from the list price.
“Respectfully yours,
“The Arbuckle-Ryan Co.,
“E. J. Wehrly, Gen. Mgr.
“We hereby agree to the above order.
“J. L. Owens Co.,
“By J. J. Owens, Pres.”
The Arbuckle-Ryan Company, plaintiff’s assignor,
These machines, which were purchased by plaintiff’s assignor in the years 1904 and 1905 under these contracts with defendant company, were at once resold to various customers. It is the claim of plaintiff that the first machines delivered under the first contract were inherently and mechanically defective;
After this correspondence between the parties, at the close of the season of 1904 and before entering into the second contract, the president of defendant company went to Toledo for the purpose, among other things, of inducing plaintiff’s assignor to continue the purchase and sale of machines in 1905. It is claimed by plaintiff that this representative of the company, in furtherance of that purpose, agreed on its behalf to send necessary materials and a competent mechanic to repair and make good every machine already sold;
Plaintiff claims that the agreement to make good the warranty on these machines in the manner above stated was not carried out. Plaintiff also claims that the machines so purchased by his assignor were paid for, and that by reason of the aforesaid defects in the machines his assignor was obliged to and did expend a large amount of money in rebuilding and repairing such machines as could be repaired, and that he suffered entire loss on other machines, together with loss of profits on sales of machines they were obliged to take back, rebuild, and resell. It is claimed by defendant that there were no inherent or mechanical defects in these machines sold under these contracts; that they were well built of the best material in a good and substantial manner; that the difficulties which arose were caused, not by the defects in the machines, but through the carelessness in operating them by those who -purchased-the same. Defendant further claims that a settlement was had between the parties at the time of entering into the contract of December 26, 1904, where an allowance was made
The record in the case is voluminous, from which it appears that both parties offered testimony tending to support their respective claims in this suit; that the case was submitted to a jury and a substantial verdict returned in favor of plaintiff.
Of the numerous errors assigned by appellant none have been presented and discussed except such as relate to the admission and rejection of evidence and the refusal of the court to give certain requests. These have been as far as possible classified, and are presented and discussed in its brief in 28 groups. The plaintiff and appellee in his brief has- considered the errors relied upon by defendant in the same order in which they are presented in appellant’s brief.
Before proceeding to consider the errors assigned and relied upon by defendant, it will be helpful in giving a clear understanding of the case to state briefly the theories of the parties upon which they presented it to the court.
The contention of plaintiff was that all these machines purchased by his assignor from defendant were inherently and mechanically defective; that they were purchased and paid for upon the representations and guaranty of defendant with respect to their quality and construction; that the machines so purchased were sold to its customers relying upon such representations that they would be good for the purpose for which they were bought and sold; that from the time the first machine was used for threshing
The three most important questions raised upon the errors assigned and relied upon by appellant are:
First, those relating to the competency and sufficiency of testimony admitted by the court in the case, over the objections and exceptions of defendant, upon the question of the inherent and mechanical defects in these machines; second, those relating to the competency and sufficiency of the evidence, admitted under the same circumstances, as to the question of loss and damage to plaintiff; third, those relating to the refusal of the court to give certain requests presented by defendant.
1. Before discussing these questions it' will be proper to state that the machines purchased under the first contract were of the same model, and alike in construction and design. They were machines out of the first shop order of 100 machines defendant ever manufactured of this style of bean threshing ma
The machines purchased under the second contract were identical with those under the first, except steel shafts, which were substituted for the cast iron ones, running in different shaft boxes. However, these were exposed to sand and dirt which cut and wore them out rapidly and unevenly, causing the machine to pound and break, by reason of being out of balance.
Plaintiff’s bill of particulars claimed damages on
The objection of defendant to the testimony of these witnesses who had not seen these machines in operation to see by what means the broken condition was caused was that it was hearsay and incompetent. It was admitted by defendant that the testimony of the seven original purchasers “was competent and sufficient to warrant the jury in rendering a verdict for damages as far as their respective machines were concerned.” It is not denied but that all these machines were identical in construction, with the exception of the shafts and boxes in the machines bought under the second contract. The testimony of the seven owners tended to show the existence of common, inherent, and mechanical defects in the class of machines in question which produced common results. The testimony of the other witnesses, tending to show
Two other matters, one relative to the admission of evidence offered on the part of plaintiff, and the other relative to the exclusion of evidence offered by defendant, should also be considered under this subdivision. Thirty-nine assignments of error are included in the objections of defendant to the admission of that number of letters offered and received in evidence. These letters are not printed in the record. They are part of a voluminous correspondence between these parties during their business relations under these contracts relative to the bean threshing machines, and extend over a' long period of time, which were introduced by both parties. By a stipulation between the parties defendant was relieved from printing these letters, and they were stipulated to be made a part of the bill of exceptions to be produced on the hearing, etc. From these assignments of error there is no indication where the exceptions upon which they are based may be found in the record. There is a reference in each assignment of error covered by this paragraph of defendant’s brief to the number of the exhibit referred to. Reference to the index of exhibits according to such numbers gives merely the pages where the exhibit is supposed to
During the trial, on cross-examination of Mr. Ryan, one of plaintiff’s witnesses, defendant offered the books of plaintiff’s assignor, which were then in court, in evidence for the purpose of showing that “It is a customary thing in its business to take back machinery and charge it back to bills -receivable.” From defendant’s brief it appears that it “contended that it is customary among jobbers and manufacturers of agricultural implements to repair and rebuild a large number of machines sold.” The court properly excluded the evidence as immaterial to the issue.
2. Errors are assigned by defendant upon the admission of testimony in relation to the loss and damage to plaintiff because of its incompetency and insufficiency.
Our conclusion as to the admission of the testimony relative.to the condition of the machines which had been returned to plaintiff’s assignor for which plaintiff claimed damages by reason of the failure of defendant’s guaranty bears directly upon the question of the amount of such damages, and is against the contention of defendant. It agrees with the conclusion of the learned trial judge, who, in submitting the case
Defendant has also assigned errors upon the admission of certain testimony, other than that above referred to, on the part of plaintiff, which was offered to show the loss and damage suffered in repairing and rebuilding the machines which were refused and returned, and other items caused by defendant’s breach of guaranty, on the ground that it was uncertain, indefinite, and incompetent. The record shows that soon after plaintiff’s assignor purchased these machines under the first contract and began to sell them, complaints as to breakage, etc., already referred to, began to come in and payment for machines was refused and purchasers began to reject and return them; that plaintiff’s assignor undertook to repair such machines without success. The record also shows from testimony and the voluminous correspondence between the parties defendant’s early knowledge of the breakages in and return of machines, and it also attempted to remedy the difficulties by furnishing supplies to replace broken parts and sending an expert for the purpose of putting the machines in good working condition, but without success. This condition relative to the breaking and return of machines continued during a long period of time. It appears, also, that plaintiff’s assignor did not know that the machines were of an experimental character and not as represented; that it had paid for all, or nearly all of them, under the contract, and had sold them relying upon the guaranty, and was under obligation to the purchasers to repair or make good the machines sold, and was not in a position to rescind the
3. Assignments of error Nos. 117, 118, 119, and 120 are based upon the refusal of the court to give certain requests to charge presented by defendant. With one exception these are the only errors of the great number assigned to the charge of the court and the refusal to give requests to charge, which are not waived by the defendant. These four assignments of error were combined and argued together with assignments based upon exceptions to the admission of the testimony of witness Ryan, touching the condition of the machines when they arrived at Toledo and the manner of rebuilding and repairing them and the general method adopted by plaintiff in arriving at his measure of damages as to the entire 37 machines. We have already discussed the testimony of this witness and other testimony of like character, and determined that the court was not in error in admitting such testimony. While such- determination to a large extent disposes of the errors assigned as to the refusal to give these requests to charge, yet it is necessary for the court to state that they included other propositions. The record shows that the portions of such requests which were proper and material were given, substantially as requested, in the main charge of the court.
Defendant in its brief argues that the verdict was excessive. No motion to set aside the verdict was made in the case, which is the proper practice to raise that question in this court. The case is an important one, and, from a statement which appears in the record, it occupied the attention of the court and jury for about six weeks. A large amount of testimony was admitted and submitted to the jury. The facts were more than usually complicated. The record shows that the case was tried skillfully, and that the questions of fact involved were submitted to the jury in a charge which carefully instructed them as to the law in the case. In this court we find that counsel for defendant have only questioned this charge in two particulars. The jury has passed upon the facts and rendered a verdict in favor of the plaintiff, which in our opinion was supported by the evidence which was submitted to them. Upon the questions of law presented to this court we have agreed with the learned trial judge. We find no prejudicial error in the case.
The judgment of the circuit court is affirmed, with costs to plaintiff.