Grimes v. Van Vechten

• Court: Michigan Supreme Court
• Writing for the Court: Campbell, Ch. J.
• Citation: Grimes v. Van Vechten, 20 Mich. 410 (Mich. 1870)
• Decision Date: 10 May 1870
• Parties: Cecil D. Grimes and Francis Coleman v. Charles D. Van Vechten and Morgan L. Fitch

20 Mich. 410

Cecil D. Grimes and Francis Coleman v. Charles D. Van Vechten and Morgan L. Fitch

Supreme Court of Michigan

May 10, 1870

Heard May 7, 1870

Error to Kalamazoo Circuit.

This was an action brought in the Circuit Court for the County of Kalamazoo, by Charles D. Van Vechten and Morgan L. Fitch against Cecil D. Grimes and Francis Coleman, in which the plaintiffs declared on the common counts in assumpsit.

The defendants pleaded the general issue and gave notice in defense "that on or about the fourth day of April, A. D 1867, the said defendants at Mattawan, purchased of the said plaintiffs, a car load of 2d clear lumber at $ 35 per thousand, to be delivered by way of the Michigan Central Railroad to the defendants at Kalamazoo. That the said purchase was made at the same time and place with the purchase of the lumber mentioned in the plaintiff's bill of particulars in this cause, and constituted with it one and the same transaction. That the said plaintiffs, in pretended compliance with the first named purchase, sent and delivered to the said defendants, a car load of lumber which the said defendants received and paid for at the price above specified for 2d clear lumber, the same, at the time of such reception and payment, being not yet unloaded from the car and not yet open to the inspection of the defendants. That such reception and payment were made upon the representations of the said plaintiffs that the same was 2d clear lumber, and the agreement of the said plaintiffs that if the same was not 2d clear lumber, the difference in value should be allowed to the defendants to be applied upon the price of the lumber for which the plaintiffs claim to recover in this suit. Whereas in fact, the said car load of lumber was not 2d clear lumber, but was on the contrary as to a large part of it common lumber, of mach less value than 2d clear lumber, and was as to another large part of it worthless; whereby the defendants sustained damages to wit: to the amount of two hundred dollars, which they will recoup against the plaintiffs in this action."

The cause was tried by a jury, who found for the plaintiffs; and the cause comes into this Court by writ of error for review of the charge of the Circuit Judge.

Judgment reversed, and a new trial granted.

Severens & Burrows, for plaintiffs in error.

Stuart & Edwards and G. V. N. Lothrop, for defendants in error.

OPINION

Campbell, Ch. J.

Defendants in error sued plaintiffs in error for the price of a car load of lumber. The defense was in substance that two car lords were included in the same original bargain, which was verbal. That when the first load arrived at Kalamazoo from Mattawan where it was shipped, the purchasers refused to accept it, as not conforming in quality to the contract. That thereupon one of the vendors came to Kalamazoo, and on his assurance and promise that any deficiency should be made...