Weiden v. Woodruff

38 Mich. 130 | Mich. | 1878

Marston, J.

Defendant in error sought to recover m an action of assumpsit upon the following instrument:

“Grand Rapids, Sept. 14, 1874.

Messrs. Isaac Woodruff & Co., General agents of the Pharos Lightning Rod Company, Grand Rapids, Mich.— You will please send me galvanized lightning rods for my Rouse within sixty days, for which I will give you ■thirty-five cents per foot, due when work is completed.

H. Weiden.

Ten per cent, discount to be given on whole amount.”

Plaintiff proved that under this order he had delivered 206 feet of lightning rod.

Defendant claiming that this written instrument did mot constitute a complete binding contract between the parties, offered to prove the conversation between plaintiff’s agent and defendant -at the time this order was given; that defendant reserved the right to countermand the order at any time within the sixty days; that he ■did in fact within that time, and before any of the rod was delivered, actually countermand the order; and he farther offered to prove that at the time the order was given the number of feet of rod to be delivered was agreed upon. This evidence was all objected to and excluded, and plaintiff recovered judgment for the amount claimed.

I. This written order did not constitute such a written contract between the parties as would exclude parol evidence, or prevent the defendant from showing any further agreement entered into between the parties at -the time the order was given, and not embraced therein. Richards v. Fuller, 87 Mich., 161; Phelps v. Whitaker, id., 72, and cases there cited.

. II. This instrument was but a mere order. Wood-ruff was not bound by it in any way to deliver any rod. Until accepted by him it was not binding upon either party. Woodruff testified that he passed upon all orders taken by his agents; if he considered tlie parties good he delivered the orders, and that if he doubted the responsibility of the party who gave the order, he had the right to reject it. Under such circumstances, it' is preposterous to say that there was a valid binding contract between the parties before Woodruff had accepted the order, and in some way notified the defendant of that fact. Even independent of such testimony, before an actual acceptance and notice thereof, the defendant had the right to withdraw his order. It is similar to an order given a merchant for goods, which before acceptance the party would have a right to withdraw. 1 Parsons on Con. [5th ed.], 483.

The judgment must be reversed with costs, and a new trial ordered.

The other Justices concurred.