Gage v. Myers

• Citation: 26 N.W. 522,59 Mich. 300
• Court: Michigan Supreme Court
• Decision Date: 20 January 1886
• Parties: GAGE and others v. MYERS.

26 N.W. 522

59 Mich. 300

GAGE and others v. MYERS.

Supreme Court of Michigan

January 20, 1886

Error to Kalamazoo.

Dallas Bondeman, for plaintiffs.

E.M Irish, for defendant and appellant.

SHERWOOD, J.

The plaintiffs in this case are manufacturers of cutter woods doing business at Homer, New York. The defendant is a manufacturer of cutters and buggies, and carries on the business extensively at Kalamazoo, under the name of the Kalamazoo Wagon Company. In March, 1884, the parties made a contract by which the plaintiffs were to furnish defendant with 1,000 cutter woods for the season of 1884, delivered on board of cars at Homer, for five dollars each. The contract was made by letter correspondence between the parties wherein it appears that the plaintiffs were permitted to deliver the cutter woods and forward them any time after the first of July, 1884. Bills for the cutters were to be dated for half, September 1, 1884; and half, November 1, 1884; and each payable four months after date. The agreement, however was conditioned upon the plaintiffs' making some concessions upon previous dealings of the parties, which it is conceded by the parties were agreed upon, and were accordingly made, and this condition needs no further consideration. On the twenty-seventh of June following the defendant ordered two car-loads of cutters under the contract, which were received and settled for. They seem to have no particular connection with the contention of the parties in this case, and may not, therefore, be further noticed. September 22d the plaintiffs notified defendant by letter that they had a good stock of cutters on hand; that the defendant's order was not yet filled; and that plaintiffs would like to make an early shipment to the defendant, it he could take care of them. On the twenty-fifth of September, in reply to this letter, the defendant wrote plaintiff as follows: "We dare not use any more of your swell-cutter woods; fully 415 of all those we have had from you this season are opening up on the back where the ship-lap is." To this letter the plaintiffs, on the twenty-seventh of September, made the following reply:

"The Kalmazoo Wagon Co.--GENTS: Your favor of the twenty-fifth inst. rec'd and noted. Referring to your letter of March 20th, we see terms and concessions on our part in consideration of which you place your order with us for 1,000 cutters. All the specifications have been faithfully carried out on our part, and we are surprised that you take the course you write of in above letter. We know that your complaint relating to the ship-lap joints is unjust, for parties who use and are using double the number of our cutters inform us that they have not had a joint open this year, and we are justified in saying that the cause of said trouble is caused by your own negligence in allowing your rubbers to turn the cutter runners up and the back to literally stand in a puddle of water. If this be not the case, the water is allowed to run upon and into the inside of the joint, causing it to open. We know this to be fact, because the joint will open under no other conditions whatever. The unjustness of your claims, and owing to a petty rivalry betwixt your home concerns, must not be laid to our door; nor can we submit, and we shall not release you from taking the balance of your order. As we said in our last letter, we have a good supply of cutters on hand, and are ready to ship your order entire. In relation to price, you are getting your cutters for less money than any other firm in the U.S. from us."

The defendants, in response, made the following reply, September 29th: "Gage, Hitchcock & Co.--GENTS: Yours 27th rec'd and noted. In reply would say, we do not handle your cutters as you infer we may. Fully 3/4 of the cutters you have sent us this season are opening at the ship-lap. As you seem to doubt our statement, would suggest you send a man up here to look them over, and if we cannot verify it we will stand the expense of the trip. As to the petty rivalry you speak of, we are not aware that that is any of your business. Mr. Pratt, of the firm of Pratt & Chase, informed us that Lane bot his swells of you at 3.00, delivered in Kal. Said Lane told him so, and had also written him to that effect. We claim our money is just as good as Lane's, or any other man's, and we expect to buy just as cheap as any one. The gear in the cutters you sent are not as good timber as heretofore. Now, we have this to say: If you will allow us what the expense is of repairing these woods, and in the future send us good, smooth woods, that will not open up in the back, we will take the balance of the 1,000 contracted for. But we do not want and will not accept any such rough, imperfect woods and poor timber in the running-gear as you have sent us this year. We also want all woods loaded in large cars, and want screws, etc., to fasten the bottoms in. If this satisfactory to you, you may load and ship a car at once; if not, you may cancel any orders we may have with you."

On the fourteenth of October the plaintiffs shipped a car-load of 140 cutters to the defendant, and November 15, 140 more, and when requested, on the eighteenth of December, to send more cutters, plaintiffs responded, on the twentieth of December, that they were all out of cutters, and could not fill the order of defendant.

We have failed to discover from the correspondence of the parties that the cutter woods received after the twenty-ninth of September were not delivered under the contract of March previous. It appears they were delivered and received in the same way as those forwarded before. The plaintiffs certainly did not inform the defendant that they had canceled the contract, either under the requirements of the defendant or for any other reason, until long after the time for them to perform had expired; but on the contrary, when anything was said upon that subject by defendant, the letters of the plaintiffs show the intention on their part to hold the defendant to a full performance of the contract, and they assert their intention and readiness to fulfill on their part.

At the contract price, the last two car-loads amounted to $1,400 and, nothing having been paid therefor by the defendant, the plaintiffs brought this suit in assumpsit against tile defendant to recover for the same. The plaintiffs declaration was upon the common counts,...