Grinnell v. Bebb
| Decision Date | 26 March 1901 |
| Citation | 126 Mich. 157,85 N.W. 467 |
| Court | Michigan Supreme Court |
| Parties | GRINNELL et al. v. BEBB. |
Error to circuit court, Wayne county; Joseph W. Donovan, Judge.
Action by Ira L. Grinnell and another against John E. Bebb. From a judgment in favor of defendant, plaintiffs bring error. Reversed.
W. L January (Moore & Moore, of counsel), for appellants.
William Mertz, for appellee.
The plaintiffs are dealers in musical instruments. In March 1896, they delivered a piano to the defendant, and took from him a writing, signed by him, acknowledging the possession of a piano, which he thereby agreed to purchase on conditions mentioned, as follows, viz.: To pay therefor $425, in installments stated, at times specified (or sooner at his option); the piano to remain the property of plaintiffs and subject to their order until fully paid for. It contained a clause providing that in case of failure to pay, or in case of removal, etc., the right to possession should, at the option of plaintiffs, be forfeited and at once ended. It contained the further provision that in case of a failure by defendant to perform any of the stipulations of the contract, or if plaintiffs should rightfully take possession of the piano, all payments theretofore made should be forfeited, and if enough should not have been paid to cover an ordinary rental, damages, and expenses, plaintiffs might collect the deficiency, and any judgment for any part of the contract price should not be a waiver of their right to retake the instrument. It also provided that plaintiffs might replace the piano with another if any rightful fault should be found with it. Plaintiffs' action is assumpsit. The declaration contains a copy of this contract, and alleges a delivery of the piano, and that defendant found fault with it, and that at his request another was substituted for it and that the same was accepted as satisfactory by the defendant. The special count concluded with the averment that the defendant had not performed his promises as contained in the writing, and alleged damage to the plaintiffs. No plea was filed. A demurrer to this special count was overruled, with leave to plead upon payment of $10 costs. The defendant declined to pay the costs or plead, and, his default being entered, the case came up for assessment of damages before a jury. Upon the assessment the defendant was allowed to introduce testimony in support of the claim that an arrangement was made between the parties whereby the plaintiffs accepted the piano back without claim of further payment, upon defendant's promise to 'help them out' if he knew of any one to whom it could be sold. This was upon the theory that it affected the question of damages, which counsel insist to have been an open question, upon which defendant was entitled to offer proof. Counsel for the plaintiffs contend that the default established their right to recover, and that the damage should have been assessed according to the terms of the instrument, and that it was not. They also urge that the testimony offered by defendant did not sustain his claim. The court instructed the jury that, unless they found that the piano was surrendered and accepted by the plaintiffs, the latter were entitled to a verdict for all the damages that they had suffered, but, if they believed Mr. Bebb, their verdict would be, 'No cause of action;' that, if they should find that the plaintiffs were entitled to recover damages over the $25 paid by Bebb when the piano was delivered, they could recover only such damages as they had honestly suffered by reason of Bebb's refusal to take the piano and pay the agreed price. The jury rendered a verdict of no cause of action.
A defendant has a right to appear and contest the amount of damages, but the default fixes his liability on the cause of action alleged, and admits that something is due the plaintiff. Clark v. Compton, 15 Tex. 32; Thompson v. Haislip, 14 Ark. 220; Banks v. Manufacturing Co., 108 N.C. 282, 12 S.E. 741; Railroad Co. v. Dowd, 9 Heisk. 179; O'Flynn v. Holmes, 8 Mich. 97; Bridges v. Stephenson, 10 Ill.App. 369; Froust v. Bruton, 15 Mo. 619; Garrard v. Dollar, 49 N.C. 175; Lee v. Knapp, 90 N.C. 171. The defendant had the right to contest the amount of damages and to call witnesses for the purpose, but the burden of proof was upon the plaintiff to establish his claim to more than nominal damages. Anthony v. Estes, 101 N.C. 541, 8 S.E. 347; Parker v. House, 66 N.C. 374. In Green's Practice (page 164) it is said that: 'All that the plaintiff is called upon to prove or that the defendant is permitted to controvert is the amount of damages (1 Bos. & P. 395), the cause of action being impliedly admitted by the default (1 Strange, 612; Doug. 315). * * * The plaintiff is entitled to nominal
damages, at least, whether he produces any evidence or...
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