Gatiss v. Cyr

• Decision Date: 14 July 1903
• Citation: 96 N.W. 26,134 Mich. 233
• Court: Michigan Supreme Court
• Parties: GATISS v. CYR.

96 N.W. 26

134 Mich. 233

GATISS v. CYR.

Supreme Court of Michigan

July 14, 1903

Error to Circuit Court, Alger County; Joseph H. Steere, Judge.

Action by John H. Gatiss, Jr., against Isadore Cyr. Judgment for defendant, and plaintiff brings error. Affirmed.

This suit was commenced in justice court. Defendant, being informed that plaintiff, a tradesman, had potatoes to sell went to his store to buy them. Plaintiff was absent. His clerk showed defendant some potatoes. Defendant immediately after, and on October 16th, wrote plaintiff the following letter: 'Mr. Gatiss, Chatham, Mich.: I have been to your store yesterday to see you in regard to potatoes. As you were not at home couldn't make any deal. The potatoes that your clerk showed me are satisfactory. I can take about five hundred bushels of those potatoes at 60 cents. If you should not have enough to make a car load you might get some from Mr. Vaughn to finish the car, as I have bought from him already 75 bushels, and I agreed to take balance of his stock. I wish you would see him so I may get all in same car. You must be sure to ship me the car before the last of this month, so that you get your check November 15th. P. S.--You can put six or seven hundred bushel in car.' To this letter plaintiff did not reply in writing, but immediately took steps to comply with its terms by shipping the potatoes. The car was loaded on the 22d, and duly shipped. It contained 21,535 pounds of potatoes. After some delay in transportation, the car was delivered by the railroad company to the defendant, who promptly refused to receive and accept the potatoes, and so notified the plaintiff. It is claimed by the defendant that the potatoes were not such as he bought while the plaintiff claims that they were, and in good condition when shipped. The potatoes were in bad condition when shipped, or became so on account of cold weather while in transportation. No acceptance was shown. The court directed a verdict for the defendant, for the reason that the contract, not being in writing, was void under the statute of frauds.

H. B. Freeman, for appellant.

F. D Mead, for appellee.

GRANT J. (after stating the facts).

If delivery by the plaintiff to the common carrier for shipment was both a delivery to and an acceptance by the defendant the case is not within the statute; otherwise it is. While some authorities hold that a common carrier is the agent of the vendee for...