Childs v. O'Donnell

• Decision Date: 06 February 1891
• Parties: CHILDS et al. v. O'DONNELL.
• Court: Michigan Supreme Court

47 N.W. 1108

84 Mich. 533

CHILDS et al. v. O'DONNELL.

Supreme Court of Michigan

February 6, 1891

Appeal from circuit court, Kent county; WILLIAM E. GROVE, Judge.

Peter Doran, for appellants.

Eggleston & McBride, for appellee.

MCGRATH J.

Childs Lee & Dunlap, plaintiffs, brought assumpsit for the price and value of several invoices of boots and shoes sold defendant, at the dates, and aggregating the amounts following:

January 25, 1888 ... $142 39

January 31, 1888 .... 142 25

February 13, 1888 .... 43 80

February 24, 1888 .... 41 00

March 26, 1888 ...... 105 25

April 2, 1888 ......... 9 00

April 11, 1888 ...... 130 25

April 18, 1888 ........ 3 50

April 17, 1888 ...... 128 00

------- $745 44

CREDITS.

April 24, 1888, by goods recd ...... $ 10 00

May 19 1888, by goods recd .......... 39 00

May 19, 1888, by goods recd ........... 3 00

June 6, 1888, by goods recd ........... 2 25

Aug. 22, 1888, by damages allowed ..... 1 20

------- 55 45

-------

$689 99

Defendant pleaded the general issue, and gave notice that he would insist on the trial: (1) That the goods referred to in plaintiffs' declaration were sold to defendant by plaintiffs for good, merchantable, durable goods; that plaintiffs guarantied them to be such, and agreed that defendant might return the goods if not such. (2) That the said goods were not good, merchantable, and durable goods, and defendant offered to return the same, but that plaintiffs refused to receive them. (3) That plaintiffs knew that said goods were of a poor quality, and that the sales made by defendant of said goods injured defendant's business, and that by reason thereof good and worthy customers have been turned away, and he has lost a large portion of his business, and defendant has been deprived of great gains and profits, and damaged to the extent of $1,000 which the defendant will recoup. The case was tried before the court, and findings of facts and law were demanded and are presented.

On January 1, 1888, plaintiffs succeeded the firm of Fuller Childs & Co., and defendant had actual notice of the change in the firm. Defendant had bought goods from Fuller, Childs & Co. during the year 1887, and on January 1, 1888, there was a balance due the old firm which was subsequently paid by remittances to Childs, Lee & Dunlap on account of that indebtedness. The goods were sold on four months' time, at the end of which plaintiffs began to press collection; and on June 27, 1888, defendant wrote to plaintiffs, threatening to return all of their goods which he had then on hand; and in another letter, dated June 30th, he informs them that the goods are packed, and are subject to plaintiffs' order. The goods packed, at the prices charged by plaintiffs, amounted to $483.45. It is admitted that the goods so packed embraced all of the goods then on hand purchased from plaintiffs, and that they include goods purchased prior to January 1, 1888, from the old firm of Fuller, Childs & Co. The court finds, first, "that in the latter part of the spring of 1887 said defendant engaged in the business of retail dealer in boots and shoes, and has since then continued in such business; and that soon after commencing such business the firm of Fuller, Childs & Co., of which said plaintiffs are the successors, through their agent, Mr. Cadwell, solicited said defendant to make purchases of goods in his line from said firm of Fuller, Childs & Co., and, to induce defendant to trade with said firm, told said defendant that all goods purchased of said firm by him should be of a good and merchantable kind, character, and material, and as good as the like priced goods of any other boot and shoe house in the United States, and that if such goods proved unsatisfactory to defendant he might return the same to said firm; and that said firm would warrant every pair of shoes to be of a good, merchantable, and workman-like character, and would stand by every pair, and make said defendant recompense for all loss which he might sustain by reason of handling said goods, if the same, or any part thereof, did not prove to be of the character so warranted; and that said defendant in the month of August, 1887, agreed to purchase goods of said firm of Fuller, Childs & Co. upon said warranty, and thereupon began to trade with said firm in accordance with said arrangement." This finding is not sustained by the proofs. The defendant gives the language used by the agent, Cadwell, as follows: "He said: 'I will recommend them with any goods you...