Angell v. Pruyn

• Citation: 85 N.W. 258,126 Mich. 16
• Court: Supreme Court of Michigan
• Decision Date: 27 February 1901
• Parties: ANGELL v. PRUYN.

85 N.W. 258

126 Mich. 16

ANGELL v. PRUYN.

Supreme Court of Michigan

February 27, 1901

Error to circuit court, Kent county; Willis B. Perkins, Judge.

Action by John Pruyn against Daniel M. Angell for breach of warranty. There was a judgment for plaintiff, and defendant brings error. Reversed.

Crane, Norris & Stevens, for appellant.

Jamieson & Ferguson, for appellee.

LONG J.

The plaintiff is a farmer living in Ottawa county. Defendant is a nurseryman of Grand Rapids. In the fall of 1894 plaintiff placed two orders for peach trees with the defendant,--the first for 1,000 and the second for 800; the trees to be of certain varieties specified upon the back of each respectively. The purchase price for the entire 1,800 trees was $135. Delivery was to be made in the following spring. At the time for delivery, the defendant not having all the varieties ordered, agreed to substitute for part of the order trees of other varieties, equally as good, which plaintiff accepted; and the trees were furnished and set out on his farm. In August, 1895, plaintiff placed a third order with defendant for 2,125 trees, at the purchase price of $150, to be delivered in the spring of 1896, and to be of certain specified varieties. As with the 1894 orders other varieties represented to be equally good were in part substituted, and the trees accepted and set out. About 1,250 of these trees proved to be untrue to label. Suit to recover damages for breach of warranty of the trees was begun December 14, 1898, and the trial was had in January, 1900. The plaintiff introduced testimony tending to show that some of the trees included in these three separate orders were not of the varieties agreed to be furnished, but were trees of much less value; that this was not discovered until the spring or summer of 1898, when the trees began to bear. Mr Edison, the supervisor of the township, and a fruit grower of many years' experience, was called as a witness by the plaintiff, and asked what the added value to 14 and a fraction acres of land would have been, set out to Smock, Crawford, and other standard varieties, when bearing in the spring of 1898. This was objected to on the ground that the declaration counted only on the two orders of 1894. The court permitted the filing of an amended declaration setting out the order of 1895. In allowing the amendment the court said: 'The sum total of those orders--those three orders--was about 4,000 trees. The particular contracts or orders are not set out, except as it is stated that the contract was made September 15, 1894. The trees were delivered, set out, several years elapsed, and this suit was brought, counting upon a contract which is alleged to have been made September 15, 1894, but setting forth the entire number of trees which it is alleged were defective under the three orders. The case has proceeded thus for a day and a half upon the theory that the three orders were given, the all the testimony relative to either one of them was admitted. The orders have been produced,--offered in evidence. No objection has been raised to any of the testimony relative to either of the orders. I have my doubts as to whether the declaration, on its face, is defective, inasmuch as each of the counts covers the entire delivery covered by the three orders, and, further, that if it is defective the case has proceeded upon both sides upon the theory that it was sufficient and adequate to cover the three orders for trees numbering something like 4,000; but if defective, under these circumstances, no objection having been taken at the time the testimony concerning either the two later orders was offered, I would be inclined to permit the amendment. It is one transaction. It is the delivery of trees, and it is alleged that 4,000 were delivered, and that a certain portion of them were defective. It is all covered by the declaration, only the declaration does not specify three different dates as to the time these orders were given. * * * I hardly think it would constitute a new cause of action to include those two orders in any event. I do not think it is a new contract, and, if the declaration should specify the date that the later orders were given, why, it can be so amended. Certainly no one will be injured. The defendant cannot be injured by such amendment, because the plaintiff and defendant both proceed upon the theory that there were three orders for trees in this case, and three deliveries.'

The defendant objected to the filing of an amended declaration upon the sole ground that the amended declaration set up a new cause of action. This is the first question presented. We think the court was in error in this ruling. The original declaration counts upon a purchase made in the fall of 1894 to wit, September 15th of that year. The first two orders were taken during that month. The trees, under those orders, it is alleged, were delivered to plaintiff in the spring of 1895, and set out and cultivated. It is now sought by the amended declaration to introduce into the case a breach of warranty growing out of an order made in September, 1895, and the trees delivered thereunder in the spring of 1896. This is introducing into the case during its trial a cause of action not originally counted upon. It is well settled that it is error to allow a declaration to be amended so as to introduce and set up a new cause of action. People v. Judges of Washtenaw Circuit Court, 1 Doug. 434; Connecticut Fire Ins. Co. v. Monroe Circuit Judge, 77 Mich. 231. 43 N.W. 871; Hurst v. Railway Co., 84 Mich. 539, 48 N.W. 44. A recovery under the original declaration in this case would have constituted no bar to a recovery upon the agreement made in the fall of 1895. Stickel v. Steel, 41 Mich. 350, 1 N.W. 1046; Reid, Murdock & Co. v....