Fuller & Rice Lumber & Manufacturing Co. v. Houseman

• Citation: 114 Mich. 275,72 N.W. 187
• Parties: FULLER & RICE LUMBER & MANUFACTURING CO. v. HOUSEMAN ET AL.
• Decision Date: 14 September 1897
• Court: Supreme Court of Michigan

72 N.W. 187

114 Mich. 275

FULLER & RICE LUMBER & MANUFACTURING CO. v. HOUSEMAN ET AL.

Supreme Court of Michigan

September 14, 1897

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by the Fuller & Rice Lumber & Manufacturing Company against Joseph Houseman and another. There was a judgment for plaintiff, and defendants bring error. Reversed.

L. G. Rutherford, for appellants.

Sweet Perkins & Judkins, for appellee.

LONG C.J.

The defendants were the owners of several lots upon Houseman's Fair Ground addition to Grand Rapids. In February, 1895, they contracted with Schuiling & Kuipers to sell them two lots for $1,000 each, and agreed to furnish them $1,000 for each lot, to erect buildings thereon to cost about $1,800 each. In attempting to carry out this agreement on the part of Schuiling & Kuipers, Mr. Schuiling met one Mr Torrey, agent of the plaintiff, and gave him figures for the bills of lumber for the two houses; and on February 28, 1895 the plaintiff made the following proposition: "Messrs Schuiling & Kuipers, City-Gentlemen: Confirming conversation with Mr. Schuiling at the Morton House yesterday, we agree to furnish you the following terms, the list comprising rough lumber, for one house. [Items omitted.] According to talk, we furnish the two houses going on the Fair Ground addition, and when we have delivered the above material, and same is satisfactory to you, as being what you bought, you are to give us an order on Joseph Houseman for the amount of our invoice, on the basis of $725 net cash, for three house bills like the one mentioned in the letter. You are then to advise us about the third house, to be built on Terrace avenue. Everything not included in this list is to be considered as an extra. Thanking you for the order, we remain, yours, respectfully, Fuller & Rice L. & Mfg. Co." This letter was received by Schuiling & Kuipers, and the lumber furnished. Plaintiff claims that on the same day Mr. Torrey, their agent, mailed the following letter: "February 28th, 1895. Joseph Houseman, Esq., City-Dear Sir: We have taken an order from Messrs. Schuiling & Kuipers for two house bills to be erected on your Fair Ground addition, upon the understanding that they are to give us an order on you for the amount of our bill. Our invoice will amount to about $475. The extras may bring it up a little higher. Henry Houseman told us you would treat these two houses in the same way you have Durkee's, and protect our interest in the same way. If same is not correct, kindly advise us. Yours, respectfully, Fuller & Rice L. & Mfg. Co., Torrey." Mr. Torrey testified that he wrote the letter for the plaintiff, took a letterpress copy of it, and then mailed the letter to the residence of Joseph Houseman, at No. 229 East Fulton street, Grand Rapids, postage prepaid. The court permitted the plaintiff to show by Mr. Torrey that after these orders were taken he presented them to Mr. Houseman; that when he took the orders to him, Houseman took a memorandum of them on the fly leaf in the back of his book, and said: "I will have to go out and see;" when Mr. Torrey said: "I will come in in a few days, and get the money;" and Houseman replied: "All right; I will pay them in a few days."

The witness was permitted to testify in regard to the Durkee matter. It appeared that Durkee had been building some houses for defendants, and getting lumber from the plaintiff; and the witness testified: "He [Durkee] would give me orders to the amount of the invoices of lumber delivered at different houses, and I would take these orders to Mr. Houseman. He would get the same book I have spoken of before, and enter the amount of the order on the fly leaf. Then it was the custom for him to have ten days, at which time he would give me a check for the amount." These buildings were being erected by Durkee about the same time that Schuiling & Kuipers were erecting theirs, or a little before that. Mr. Houseman testified that he never received this letter, and that the first he ever knew that this lumber was being furnished by the plaintiff was when the orders of Schuiling & Kuipers were presented to him; that, when presented, he looked at the books, and told Mr. Torrey there was nothing coming to Schuiling & Kuipers, and stated that he would not pay unless there was money coming to them, and there never was any. He further testified that he had advanced to Schuiling & Kuipers some considerable money, when they failed, and he was compelled to go on and finish the contract, which he did, paying out, including what he paid Schuiling & Kuipers, something over $1,000 on each house. Mr. Schuiling testified that when they failed there was nothing coming to them on the estimates. It also appeared, without contradiction, that the lumber was charged upon plaintiff's books to Schuiling & Kuipers, and not to the defendants.

Defendants' counsel asked the court to direct the verdict in favor of defendants. This was refused, and the court charged the jury substantially that: "In order to entitle the plaintiff to recover, they must find that plaintiff sold and delivered this lumber on the credit and promise of the defendants to pay therefor prior to such delivery, or some part of it. If the sale and delivery were made to Schuiling & Kuipers without the knowledge or promise of the defendants, the plaintiff could not recover. The mere belief on the part of the plaintiff that the defendants would become responsible for it, when in fact they knew nothing about it until long after the sale and delivery, would not render the defendants liable. There would be no contract in such case that there must have been what is known in law as an original agreement or undertaking between the parties in order to render the defendants liable; which means, in short, that the plaintiff parted with this lumber relying on the promise of the defendants...