Gibson v. Cranage

• Decision Date: 11 June 1878
• Citation: 39 Mich. 49
• Court: Michigan Supreme Court
• Parties: Jefferson J. Gibson v. Thomas Cranage, Jr

39 Mich. 49

Jefferson J. Gibson v. Thomas Cranage, Jr

Supreme Court of Michigan

June 11, 1878

Submitted June 7, 1878

Error to Bay.

Assumpsit. Plaintiff brings error.

Judgment affirmed with costs.

Shepard & Lyon for plaintiff in error. A vendor is entitled to a reasonable time within which to replace defective merchandise before the contract of purchase is rescinded, Davis v. Downs 4 Mich. 531.

Scofield & Webster for defendant in error.

OPINION

Marston J.

Plaintiff in error brought assumpsit to recover the contract price for the making and execution of a portrait of the deceased daughter of defendant. It appeared from the testimony of the plaintiff that he at a certain time called upon the defendant and solicited the privilege of making an enlarged picture of his deceased daughter. He says "I was to make an enlarged picture that he would like, a large one from a small one, and one that he would like and recognize as a good picture of his little girl, and he was to pay me."

The defendant testified that the plaintiff was to take the small photograph and send it away to be finished, "and when returned if it was not perfectly satisfactory to me in every particular, I need not take it or pay for it. I still objected and he urged me to do so. There was no risk about it; if it was not perfectly satisfactory to me I need not take it or pay for it."

There was little if any dispute as to what the agreement was. After the picture was finished it was shown to defendant who was dissatisfied with it and refused to accept it. Plaintiff endeavored to ascertain what the objections were, but says he was unable to ascertain clearly, and he then sent the picture away to the artist to have it changed.

On the next day he received a letter from defendant reciting the original agreement, stating that the picture shown him the previous day was not satisfactory and that he declined to take it or any other similar picture, and countermanded the order. A farther correspondence was had, but it was not very material and did not change the aspect of the case. When the picture was afterwards received by the plaintiff from the artist, he went to see defendant and to have him examine it. This defendant declined to do, or to look at it, and did not until during the trial, when he examined and found the same objections still existing.

We do not consider it necessary to examine the charge in detail, as we are...