Barker v. Cleveland

• Citation: 19 Mich. 230
• Court: Supreme Court of Michigan
• Decision Date: 19 October 1869
• Parties: Orrin D. Barker et al. v. William H. Cleveland

19 Mich. 230

Orrin D. Barker et al. v. William H. Cleveland

Supreme Court of Michigan

October 19, 1869

Heard October 12, 1869

Error to Lenawee Circuit.

Assumpsit for goods sold and delivered. Plea, general issue, with notice of set-off and breach of warranty; and, puis darr con. a judgment between the same parties in bar.

Judgment affirmed.

D. B & H. M. Duffield, for plaintiffs in error.

A. L Millard, for defendant in error.

OPINION

Cooley, Ch. J.

The record in this case exhibits the following state of facts:

On January 18, 1868, Cleveland brought suit against Barker & Bewick before a Justice of the Peace of Lenawee County, to recover the price of a quantity of cranberries sold by him to them, together with the packages containing them, and an oil barrel. The defendants pleaded the general issue, with notice of set-off, and also the following notice: "That in, to wit, October, 1865, the defendants bargained with plaintiff for a large quantity, to wit, 20 barrels of cranberries, which the said plaintiff promised to sell and deliver to defendants, and promised that said cranberries should be good merchantable cranberries, and of number one quality, and that plaintiff did not keep his promise and undertaking, but instead thereof sent to defendants a lot of poor cranberries of inferior quality, and not merchantable or of any value, which are the same cranberries set forth in the plaintiff's declaration, whereby defendants were put to great costs and loss and expense in and about the premises, and in the payment of transportation, cartage and storage upon said berries, and otherwise were greatly damaged, and sustained great loss and damage in the premises, which damages the defendants will recoup in this cause, and have the amount certified in their favor. And that the cranberries set forth in the plaintiff's declaration, and for which plaintiff seeks to recover judgment, were a poor and inferior lot of cranberries, not merchantable or of any value to defendants, and not such cranberries, as the plaintiff promised to sell and deliver to defendants, and that plaintiff promised and agreed that said cranberries should be of good merchantable quality, and number one cranberries, and that plaintiff failed to keep his said promise and agreement."

It appears from the record that the issue thus joined between the parties was tried by the Justice, and judgment rendered in favor of the plaintiff, from which the defendants appealed.

After the appeal had been taken, and while it was pending in the Circuit Court, Barker & Bewick brought action against Cleveland before a Justice of the Peace of Wayne County, and declared for the same breach of contract on his part, which was set forth in their notice of recoupment in the suit in Lenawee. Cleveland pleaded the general issue, and gave notice of the former suit in bar. The suit in Wayne County was tried, and the plaintiff therein proved that the cranberries in question were purchased by sample at Adrian, and were to be sent by railroad to the plaintiffs at Detroit; that they were sent accordingly, but when received were found to be greatly inferior to the sample; that Cleveland was notified by letter of the deficiency, but returned no satisfactory answer; that after holding them some time subject to his orders, they advertised them at auction and sold one barrel at a small price, but found it impossible to sell the balance at any price, and were finally obliged to throw them out. They exhibited a bill on the trial, wherein Cleveland was charged with freight and other charges, and with one hundred dollars paid on the purchase, and credited with the sum received for the one barrel sold. The question whether there was any difference in value between the berries bargained for and those actually delivered, was not raised in the evidence on that trial, but the plaintiff claimed that the cranberries were worthless, save what was received on the sale of the one barrel. In their bill of particulars the plaintiffs credited the defendant with the price of the oil barrel he had sold them, and the same was allowed by the Justice in the judgment which he rendered. That judgment was in favor of the plaintiffs for one hundred and twenty-nine dollars and thirty-three cents damages and costs. Cleveland subsequently removed the proceedings into the Wayne Circuit Court by certiorari, but the judgment was there affirmed and he then paid it.

The cause in Lenawee County was brought to trial in the Circuit Court on May 28, 1869. The plaintiff, Cleveland, proved the sale of the cranberries at the price agreed upon, also of the packages containing them and the oil barrel, and that they were delivered by him to common carriers at Adrian to be transported to Detriot, according to the directions of the defendants. The proof of the sale was oral, and did not show whether the contract was in writing or not, but it does not appear to have been objected to by defendants. The defendants relied upon the judgment in Wayne County as a bar, they having given notice puis darrein continuance of the judgment as a defense. The Circuit Judge found that there was a valid contract of sale; that the judgment in Wayne County was not a bar, and that plaintiff was entitled to recover the agreed price for the berries, and he gave judgment accordingly. This judgment is the one now before us on writ of error.

As we think the Circuit Judge reached the correct conclusion on the merits in this case, we do not find it necessary to discuss some of the questions raised by the brief of the defendant in error, the plaintiff below, and which are supposed to meet, on grounds of a technical character, the various assignments of error. Some of those questions are both difficult and important, and it is proper that a decision upon them be postponed until it shall become necessary.

The plaintiffs in error insist, among other things, that the contract of sale, as shown in the court below, should have been held void under the Statute of Frauds, inasmuch as it was for the sale of goods to the value of more than fifty dollars, and it was neither shown that the contract was in writing, nor that any earnest money was paid, nor that there had ever been an acceptance of the goods as required by the statute in the absence of a written contract or of earnest money. Delivery to a carrier, they say, is not delivery to them; and there was no evidence given in this case to show that the berries ever came to the hands of defendants.

There is an answer to this, which it would seem ought to be conclusive. Not to speak of the facts that it does not affirmatively appear that the contract was not in writing; that the evidence to establish it was received without objection, and that the Circuit Judge finds the contract a valid one, we may inquire whether it does not affirmatively appear that the berries were in fact received and accepted by the defendants in such a manner as to make the contract valid under the Statute of Frauds.

The plaintiff, it appears, relied upon a delivery to the carrier selected by the defendants as a delivery to and an acceptance by them. If the evidence had stopped here it would have been necessary for us to determine whether the receipt by the carrier was such an acceptance by the purchasers as would satisfy the statute. But it did not stop...