Bay State Milling Co. v. Szucs, 76.

• Decision Date: 19 December 1923
• Docket Number: No. 76.,76.
• Citation: 196 N.W. 355,225 Mich. 509
• Parties: BAY STATE MILLING CO. v. SZUCS.
• Court: Michigan Supreme Court

225 Mich. 509

196 N.W. 355

BAY STATE MILLING CO.

v.SZUCS.

No. 76.

Supreme Court of Michigan.

Dec. 19, 1923.

Error to Circuit Court, Wayne County; William B. Brown, Judge.

Action by the Bay State Milling Company against Steph Szucs, doing business as the Harrington Bakery. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Daniel M. Lynch, of Detroit, for appellant.

Olen K. Underwood, of Delray, for appellee.

STEERE, J.

The Bay State Milling Company is a foreign corporation, located in Winona, Minn., with a branch office at Detroit, in charge of a manager who in June, 1921, sold 20 barrels of ‘Wingold short patent’ flour, and five-sevenths of a barrel of ‘pure dark rye’ flour to defendant, who runs a bake shop in Detroit. Ten barrels were delivered on June 9 and ten barrels with the rye on June 23, 1921. ‘Terms: Net 10 days, no discount.’ Defendant receipted for it on the same dates as received, ‘In good condition.’ The purchase price, which is undisputed was $205.54.

Defendant retained the flour, used approximately one-half of it, and later refused payment, claiming it was bad flour, unfit for use. Plaintiff brought this action in a justice court of Wayne county to recover the purchase price, declaring on the common counts. Defendant pleaded the general issue with notice of special defense. Plaintiff recovered judgment for the full purchase price of the flour, and defendant appealed to the circuit court of Wayne county, where, on retrial before a jury, defendant had judgment in his favor.

Under its ten assignments of error, plaintiff's counsel especially urges and argues the two contentions that the trial court erroneously charged the jury as to the burden of proof, and in effect charged them to disregard proof of approval of the flour by the Detroit board of health as follows:

‘Something has been said about the board of health O. K.'ing this flour and bread. You cannot consider that, because an O. K. of any kind in that language is not evidence for a jury. You do not know who it was that O. K.'d it. If it was to stand here, you do not know who O. K.'d it, and cross-examination might show whoever it was did not know anything about flour at all. You have the right to test the weight of testimony, and you would have a right to observe the witness and determine the weight and credit to be give to his testimony, whether or not he is prejudiced or biased, and his demeanor upon the stand, and so I did not allow that testimony in here, because it has no place here. It was not proper, was not admissible, so you won't pay any attention to that.’

Defendant's wife, Rose Szucs, was the only witness sworn in his behalf. She testified that her husband was working in the bakery and not able to be present at the trial; that they kept this flour in the bake shop and used about 10 barrels of it, which ‘was the first shipment, and the second shipment is still there.’ Asked by her attorney if the flour furnished by plaintiff had ‘any peculiarities other than other bread from other flour that you used,’ she said:

‘Well, the bread that we baked out of Bay State Milling Company's flour, in twenty-four (24) hours had turned pink, and it had an awful smell, and we could not sell it to customers, so I took the bread to the board of health and had them look at it, so Mr. Hill, the board of health inspector, came down there and investigated the bake shop and took a sample of the stuff we put in the bread.’

Asked on cross-examination what other things he took, replied:

‘Well, he took some corn syrup; that is, after he came with manager. After that he came and asked me what was used in the bread, and I told him corn syrup. He took a sample of that because he told me the flour was all right.

‘Q. What else did he take? A. That is all-flour, bread, and corn syrup.’

Mr. Hill, the inspector, who had been in that service for over three years, and prior to that had learned and followed the baker's trade, testified that complaint of this flour was received from defendant on July 15 or 16, and he ‘had charge of the settling of their complaint from the time it was brought in until it was entirely straightened out,’ that the bread in the two loaves they...