165 Mich. 180 | Mich. | 1911
This action was begun before a justice of the peace. The declaration, though oral, was as entered, a formal one of three counts, all setting up a promise by
Rescission. The case appears to have been tried upon the theory that plaintiffs were entitled to damages for the alleged breach of warranty, which is inconsistent with the count based on a rescission, and that count and such assignments as are based on the theory of rescission may be disregarded.
The Warranty. The plaintiffs introduced testimony tending to support the warranty alleged, and there was testimony that the promise was that the furnace should heat the house to the satisfaction of the plaintiffs, and their counsel asked the court to charge that, if the jury found that such was the agreement, and that the plaintiffs were not satisfied, their verdict should be for the plaintiffs. The warranty alleged in - the declaration has been stated and did not justify the introduction of this testimony or request.
Direction of Verdict. It is contended that the verdict was contrary to the evidence, and that for that reason the judgment should be reversed. If by this, counsel mean that' the court should have directed a verdict for the plaintiffs, we are constrained to say that there was a conflict in the testimony both as to the warranty and the
Damages. Several of the questions relate to the damages recoverable, but, as the verdict was for defendants, the plaintiffs have not suffered from them.
Other Furnaces. The defendants offered and the court allowed the introduction of testimony tending to show that they had erected other heating plants with the same kind of furnaces, and that they had all been efficient, and some had satisfactorily heated houses of equal size with wood fuel. This was against plaintiffs’ protest. It was plaintiffs’ claim in this case that the furnace was better adapted to coal than wood and would not heat the house with wood, which is what it was agreed that they should burn, citing Avery v. Burrall, 118 Mich. 672 (77 N. W. 272). We are of the opinion that the testimony was not admissible. The case of Second Nat. Bank v. Wheeler, 75 Mich. 549 (42 N. W. 963), states the rule which should have been applied. See, also, D. M. Osborne & Co. v. Bell, 62 Mich. 214 (28 N. W. 841); McCormick Harvesting Machine Co. v. Cochran, 64 Mich. 636 (31 N. W. 561); Altman v. Fowler, 70 Mich. 57 (37 N. W. 708); Wickes Bros. v. Electric Light Co., 70 Mich. 322 (38 N. W. 299). The case of Avery v. Burrall, supra, was considered properly distinguishable from the above cases; the present case is not; and that case was not intended to abrogate the general rule as hitherto applied.
We have endeavored to examine all questions raised, but think it unnecessary to discuss all. Several requests are covered by the charge.
The judgment is reversed, and a new trial ordered.