Harrow Spring Co. v. Whipple Harrow Co.

• Decision Date: 05 February 1892
• Citation: 51 N.W. 197,90 Mich. 147
• Court: Michigan Supreme Court
• Parties: HARROW SPRING CO. v. WHIPPLE HARROW CO.

51 N.W. 197

90 Mich. 147

HARROW SPRING CO. v. WHIPPLE HARROW CO.

Supreme Court of Michigan

February 5, 1892

Error to circuit court, Kalamazoo county; GEORGE M. BUCK, Judge.

Action by the Harrow Spring Company against the Whipple Harrow Company. Judgment for plaintiff. Defendant appeals. Reversed.

Boudeman & Adams, (H. E Walbridge, of counsel,) for appellant.

Osborn & Mills, (Howard & Roos, of counsel,) for appellee.

MONTGOMERY J.

This action was brought to recover for harrow teeth furnished by the plaintiff to the defendant during the year 1889. The defendant sought to recoup damages on the ground that the teeth furnished were not properly tempered, and particularly for the reason that they were not of as good quality as certain teeth which had been furnished to defendant, and with which tests had been made prior to the making of the contract referred to below, and also sought to recoup damages for the failure of the plaintiff to furnish the teeth within the time contemplated. The contract was made November 21, 1888. The plaintiff had previously furnished the defendant a quantity of harrow teeth. The plaintiff's agent, Mr. Burdick visited Eaton Rapids, then the home office of defendant, and a test of the tool was made in his presence, which proving satisfactory, the plaintiff made to the defendant this proposition: "We will agree to furnish you with 28,000 harrow teeth, of your regular patterns, such as heretofore furnished, and 12,000 special double-edge teeth as per pattern, at 4 1/2 cents per pound." The defendant accepted the proposition in writing.

1. The trial judge appears to have interpreted the words "such as heretofore furnished" as referring to the patterns spoken of, and to have construed the contract as though it had read, "We will furnish you 28,000 teeth of the same patterns heretofore used." The defendant contends that the language imports that the teeth to be furnished are to correspond to those theretofore furnished. We agree with this view maintained by the defendant. The parties had, on the very day of making the contract, tested the quality of the teeth which had been furnished, and it was evidently a matter which they had under consideration; and we think the language, fairly construed, refers to the quality of teeth to be furnished. This view is strengthened by the fact that the term "regular patterns" sufficiently fixed the style, size, and shape of the teeth, and the words "such as heretofore furnished" were wholly unnecessary to complete the description. The rulings relating to this subject are erroneous.

2. Defendant alleges as error that the court refused to permit its witnesses to testify that it was agreed that the plaintiff should have the goods on hand when ordered. The provision of the contract relating to shipments is as follows: "Shipments of these goods to be made as specified, but not later than July 1st, 1889. We will also agree to furnish what additional amounts of the above goods you may require for your season's trade upon the same terms and conditions, and are to have a reasonable time and notice in which to fill any additional amount, say thirty days." The circuit judge permitted the defendant to show what orders were given at the time the contract was made, but construed the contract to mean that the plaintiff was to have a reasonable time after the goods were specified or named within which to make the shipment, and ruled that it could not be shown by parol that plaintiff agreed to keep the teeth on hand ready for immediate shipment. In view of the fact that the teeth were to be manufactured from different patterns, which were the patterns of the defendant company, we think the trial judge correctly construed the contract to be one requiring manufacture and shipment within a reasonable time after being informed as to the goods required. Such being the construction of the contract, while it was competent for the defendant to show that he gave an order on the same day the contract was made or designated the kind of goods required, and quantity, it was not...