87 Mich. 272 | Mich. | 1891
This cause was tried before Hon. V. H. Smith, judge of the Montcalm circuit court, without a jury, who rendered judgment for the plaintiff in the sum of $353.25.
The facts as found by the circuit judge are substantially as follows: February 5, 1889, the plaintiff and defendants entered into the following written contract:
“ Sheridan, Mich.,- February 5, 1889.
“I hereby sell to G. N. Wagner & Bro., Grand Rapids, Mich., the cut of Pitcher’s mill from February 1 to July 1, 1889, white pine shingles, to be 5 butts two and a quarter and 10 inches long; the XXXX to be strictly clear and free from all imperfections, and the 6-inch C. B. strictly clear butts. No other grades to be taken out. All to be free from stain, dote, and rot, and guaranteed to be good, merchantable shingles. Price, XXXX $2.75 per M., and $1.50 per M. for C. B. Shingles to be piled at railroad, and branded with G. N. Wagner & Bro.’s brand at mill as' made, with brand furnished by G. N. Wagner & Bro. All shingles reported on the 1st and 15th of each month to be paid for not later than the 5th and 20th, and when paid for title to pass to G. N. Wagner & Bro., to be loaded on car free of expense to G. N. Wagner & Bro.
“J. G. Summers. [Seal.]
“We agree to'fill our part of the above contract.
“G. N. Wagner & Bro.”
Indorsed on the contract is the following:
“The within contract is hereby extended to Nov. 1> 1889, with same terms and conditions.
“G. N. Wagner & Bro.
“J. G. Summers.”
On the 2d or 3d day of July, 1889, one of the defendants was at the mill, and the extension above was agreed to, and a few days later signed by the parties. ’ „
When the original contract was made, the mill was
When one of the defendants was at the mill in July he directed that the shingles be shipped from those piled nearest to the mill. The defendants would send written orders to plaintiff for the shipment of the shingles, which would be loaded and shipiied in compliance with such orders. On the 23d of July, 1889, plaintiff received the following order from defendants:
“Grand Rapids, Mich., July 22, 1889.
“Order No. 543.
“To J. G. Summers,
“Sheridan, Mich.
“Dear Sir: Please load for New Haven, Ct., and con*275 sign to F. W. Stone, New Haven, Ct., one car 10-inch XXXX pine. Hurry up the orders sent you some time ago, and be sure and brand every bundle. Order car at once, and load promptly. Be careful in loading to keep your tally correct. Send invoice promptly, and with it the number of this order. Fasten firmly both doors of car before it leaves your siding. Do not load any broken bunches of shingles.
“Bespectfully, G. N. Wagner & Bro.”
When this order was received plaintiff loaded into a car, on July 25, 100,000. XXXX shingles, which had been cut after July 15, and had not been reported or paid for, but which had been piled where defendant Levi B. Wagner directed they should be piled; and-he took them from the place where said defendant had told him to ship from on July 2 or 3, as orders came for the shingles, —that is, he was told to and did load the cars from the shingles nearest the mill. This car loaded with XXXX shingles left Sheridan before the mill burned, and on the-25th day of July, 1889.
Pursuant to another order received from defendants, the plaintiff had on the 26th day of July, 1889, partly loaded another car w-ith shingles, — that is, he had placed in the ear, July 26, 43,000 C. B/s, and 5,000 XXXX’s, and the car was standing on the side track the night of July 26, 1889. The shingles in this car had been taken from those nearest the mill, as before directed by defendant Levi B. Wagner, and from the place where it had been agreed they should be piled; but they were aP shingles that had been cut after July 15, and had not been reported or paid for when loaded,
On the morning of July 27, 1889, the mill burned, burning the car partly loaded, with the shingles therein, and also burning 32J thousand of C. B.’s, not loaded on car, and cut after July 15, and not reported or paid for, but piled where directed by defendants. At the time of
It was the intent of the plaintiff and defendants that the car-load of XXXX shingles shipped July 25, 1889, should belong to and be the property of the defendants from the time they were loaded into the car for shipment, and it was also their intent. that the shingles loaded into the car burned should belong to and be the property of the defendants as fast as loaded into the car, and the title to the shingles in both car-loads passed to the defendants before the fire.
From these facts the circuit judge found as a matter of law that the , plaintiff ivas entitled to a judgment for the value of the shingles at the contract price, with interest at 6 per cent.
Some objections were made to the admission of testimony, upon the overruling of 'which errors are assigned; but we are satisfied that there were no errors committed in this respect. It was competent to show that plaintiff and defendants agreed, after the execution of the written agreement, that shingles nearest the mill, and not reported and paid for, might be shipped, and the title pass upon such shipment; and, when such agreement had been carried into effect, as in the case of the car-load shipped under direction of the defendants in their order of July 22, 1889, the plaintiff would be. entitled to recover the contract price of the shingles so shipped. The plaintiff was clearly entitled to judgment for the value of this car-load.
As to the shingles loaded into the car which was not-fully loaded, and which was burned, with its contents,
Judgment was entered in the court below for the .shingles in both cars at the contract price, with interest at 6 per cent. There was error in' including in this judgment the shingles in the burned car. Judgment will be entered in this Court for the plaintiff for the
The defendants will recover costs of this Court.