Hoffman v. Lake Shore & M.S. Ry. Co.

• Decision Date: 13 November 1900
• Citation: 125 Mich. 201,84 N.W. 55
• Parties: HOFFMAN et al. v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

84 N.W. 55

125 Mich. 201

HOFFMAN et al. v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

November 13, 1900

Error to circuit court, Kalamazoo county; George M. Buck, Judge.

Action by Richard C. Hoffman and another against the Lake Shore &amp Michigan Southern Railway Company. From a judgment in favor of plaintiffs, defendant brings error. Reversed.

Bondeman & Adams, for appellant.

E. A. &amp Robert B. Crane, for appellees.

MONTGOMERY C.J.

The plaintiffs recovered in an action of replevin. Defendant brings error. The circuit judge found the facts, and defendant excepted to certain of the findings. As all the testimony is returned, and in essential points undisputed the material points in the case may be as well understood by a succinct statement of the essential facts as disclosed by the record as by setting out the findings, which are lengthy. The plaintiffs are dealers in railroad supplies. In April, 1899, one C. H. Lawrence, as a representative of the International Construction Company, opened negotiations with the plaintiffs for the purchase of two car loads of railroad spikes, stating that the construction company intended to make use of them in building the Cambridge & Erie Spring road. On the 7th of May an order for 700 kegs of spikes was given for delivery, to be delivered the latter part of June to the middle of July; terms: 'Five days sight draft against bill of lading.' By mistake plaintiffs, having overlooked the date fixed for shipment, ordered the spikes from the manufacturers at once, and on the 12th of May wrote the construction company as follows: 'Referring to your letter of the 7th inst., ordering 700 kegs of spikes, we sent the order into the mill, and, through an inadvertence, the delivery latter part of June or first of July was overlooked, and we are to-day in receipt of bill lading showing that shipment has been made. We have asked the R. R. Company to stop it, and in the meantime we would like to hear from you whether you can receive these spikes or not. We greatly regret the oversight, and trust you can take them.' The construction company replied that they could not take the spikes except on 20 days' draft. Plaintiffs replied: 'We are in receipt of and thank you for your T. D., stating that you will take the spikes if we will make draft in 20 days. We are very anxious to close this matter out, as we have next to no margin on it, and, as an inducement to do so, we wired you to day if you would not accept them at a discount of 1 per cent. a day, sight draft at once. We trust you can do this.' To this the company replied on the 20th: 'We cannot use spikes except on terms as made you, viz. 20 days' draft attached to bill of lading.' Plaintiffs on the 23d made draft at 20 days attached to bill of lading. The construction company refused to accept the draft unless the bill of lading should be delivered, and explained their action by letter on the 30th: 'We beg to acknowledge the receipt of yours under date of May 27, 1899, and in reply to same would say: We accepted your draft, and the next day the bank messenger returned, saying that the instructions from the Baltimore bank were not to deliver the papers until the draft was paid. You will understand that the demurrage on the three cars of spikes will amount to $6 per day, which will amount to $120, and, with the price of $120 added to the price of the spikes, there would be no economy by purchasing them at your figure. Of course, this is neither here nor there. If you can arrange to hold the spikes in the cars at the point of shipment, or arrange so there will be no demurrage, we have no objections to accepting the draft, and allowing the bill of lading to remain with it until it is paid. Kindly advise us if you can do this, and there will be no trouble about the acceptance or the payment of the draft when due.' To this the plaintiffs replied as follows: 'We are in receipt of your letter of the 30th ult., in regard to the draft attached to the bill of lading. We directed the bank immediately on receipt of your telegram to deliver the bill of lading to you, and we suppose this has been done, and that everything will be all right.' The company then accepted the draft by 'E. R. Elmer,' received the bill...