220 Mich. 143 | Mich. | 1922
In August, 1920, the parties hereto entered into two contracts; under one of which, known as No. 2444, defendant purchased 500 tons of pig iron at $45 per ton, f. o. b., Toledo, Ohio, to be delivered by plaintiff in equal monthly quantities over the first half of the year 1921, and under the other known as No. 2448, 300 tons of pig iron at $46 per ton, f. o. b., Toledo, to be delivered in equal monthly quantities over the same period. Pickands, Mather & Co., a co-partnership, of Cleveland, Ohio, represented the plaintiff company as its general sales agents with H. E. Blackwell as district sales manager for the State of Michigan, and Mr. Blackwell maintained an office in the city of Detroit and executed the contracts in behalf
There was undisputed testimony that:
“It is understood by people that buy pig iron and sell pig iron that what is meant by equal monthly installments is approximately — it- is almost impossible to load each car with the exact amount, and if it is*146 within a few tons it is permissible. It has always been the custom with the Lansing Company and ourselves in the past, and has always been the course of dealing between us and the Lansing Company.”
We call attention to this merely to show there was no significance in the fact that the car load lots did not meet to a pound the quantity agreed to be shipped during the month of January. The learned circuit judge held that the contract related to interstate commerce and, therefore, plaintiff was not doing business within this State in contravention of the statute (2 Comp. Laws 1915, § 9063 et seq.). This holding was correct. See Levin v. Fisher, 217 Mich. 681.
We need consider but one question and that is whether defendant had a right to rescind contract No. 2448 on the claim that there was a failure to deliver the pig iron it called for during the month of January. The decision in the circuit court seems to have proceeded on the theory that plaintiff was in default in not making the stipulated January delivery under contract No. 2448. Approximately the full stipulated January deliveries under both contracts were made but instead of being invoiced under the two contracts they were billed under the first one. Defendant was not deprived of anything in so receiving what plaintiff was under contract to deliver, and did deliver, and is in no position to contend that in accepting more than it was obliged to take under the first contract it could treat such excess delivery as a failure to deliver under the second contract and, therefore, a breach thereof. Defendant was entitled to a certain quantity of iron for January and got it, and we cannot hold that because the two shipments were invoiced under the first contract there was a breach of promised delivery under the second contract. If defendant had stood for strict performance of the first contract at the time of the deliveries it would have rejected the clearly wrong
The judgment is reversed and a new trial granted, with costs to plaintiff.