147 Mich. 400 | Mich. | 1907
(after stating the facts). The evidence on. the part of defendants tended to prove that upon the sale of the cement it was warranted to be first class, “A No. 1,” suitable for making cement blocks, and equal to any on the market. Plaintiff proved the sale, delivery, and value of the property. Indeed, these facts are virtually admitted by the notice given with the plea of defendants. The principal contention on the part of defendants’ counsel is that plaintiff, in order to recover, was bound to prove that the goods delivered were equal to the alleged warranty. The distinction between this case and Pungs v. Brake-Beam Co., 128 Mich. 318; Allen v. McKibbin, 5 Mich. 454, and other cases cited and relied upon by counsel for defendants, is that here plaintiff has delivered
“We are impelled to say that the extent of the damages, if any, had not been shown with reasonable cer*403 tainty; that from the evidence it was not susceptible of reasonably accurate computation.”
Evidence tended to show that some 1,600 blocks were made from this cement which were not marketable; that a proper block was worth 19 cents; that 800of these were sold for 15 cents,- and the remainder for $25. It further appears that these blocks were colored by introducing into the mixture of sand, cement, and water some substance not chemically described. Direct evidence was not produced to prove that the coloring matter so used was not responsible for the appearance and condition of the blocks, although the evidence is that it was the same as theretofore and thereafter used, satisfactorily, with other cement. There was evidence of the statements of the agent of plaintiff, sent in response to complaint made to inspect the blocks and make a test of the cement, that the trouble with the cement was that it contained too much alkali. There is no evidence tending to show that this representative of the company raised the objection that the coloring matter used was the cause of the trouble. We are of opinion that there was some evidence for the jury of the amount of damages sustained, and that it was error to direct a verdict for plaintiff.
We need not do more than refer to the errors assigned upon a ruling excluding three letters offered by defendants. The record does not disclose whether the originals or copies were produced in court. They appear to be letters written by defendants to plaintiff about the cement in question, and appear to have been answered. When, if at all, the answers to them were received in evidence, does not appear. The proof made by a clerk was that the letters were dictated to her by a member of the firm, were written out by her as dictated, were signed by her with the firm name, put in envelopes properly addressed, and mailed to plaintiff. The objection made was that the member of the firm who dictated the letters was the proper person by whom to prove these facts. The ruling was
The judgment is reversed, and a new trial granted.