Hosmer v. Wilson

• Decision Date: 17 October 1859
• Citation: 7 Mich. 294
• Court: Michigan Supreme Court
• Parties: Rufus Hosmer and another v. John B. Wilson

7 Mich. 294

Rufus Hosmer and another v. John B. Wilson

Supreme Court of Michigan

October 17, 1859

Heard October 5, 1859 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

The action was originally brought by Wilson against Hosmer & Kerr, in justice's court. The declaration was in assumpsit, as follows: "For work and labor done, and services rendered, and materials furnished, by plaintiff and his servants for defendants, all at request of said defendants."

The cause was brought into the circuit court by appeal, and on the trial in tat court, before a jury, the plaintiff introduced James A. Noble as a witness, who testified: That, in the month of August, 1858, he was the clerk, book-keeper, and (in his absence) general manager of the plaintiff, who then carried on an iron and brass foundry, at Detroit; that, on the 5th day of said August, John A. Kerr, one of the defendants, called at the foundry, in the absence of the plaintiff, and there signed a written order drawn up by the witness, and introduced and read in evidence, a copy of which is as follows:

"August 5th, 1858.

"Hosmer & Kerr, Lansing, Michigan, want a 5 1-2 inch engine, as soon as he can get out, to stand uprightly. The price to be 230 dollars, and to be paid, when taken out of the shop. Hosmer & Kerr."

That witness, on behalf of the plaintiff, accepted the order, and undertook and agreed to make an engine for defendants, on the terms proposed in said order; that plaintiff returned next day, and immediately commenced on the work ordered by defendants, and proceeded with it until the 18th day of said August, when a letter was received from the defendants, of which the following is a copy:

"Mr. J. B. Wilson, Dear Sir:--We countermand our order for a steam engine. We should be pleased to have taken it, but we do not need it, having purchased one that will suit us better. Yours resp'y,

"Hosmer & Kerr."

That previous to that time, and in fulfillment of the order of the defendants, all the articles, specified in the plaintiff's bill of particulars, were made, and the work and labor therein mentioned was done.

The following is a copy of said bill of particulars:

To casting cylinder, 100 lbs., steam chest and cross

head, 40 lbs., at 5c.

$ 7 50

" pillow block, 27 lbs., piston rings and followers,

26 lbs.--53 lbs., at 5c.

2 65

To casting engine frame, 266 lbs., pump, 9

lbs., crank, 25 lbs.--300 lbs., at 5c.

15 00

" fly-wheel, 138 lbs., governor stand and balls, 30

lbs.--168 lbs., at 5c.

8 40

" connecting rod and piston rod, 18 lbs., at 5c.

90

" wrist pin, 4 lbs., valve nuts, 2 lbs., bolts for pillow

block, 2 lbs.--8 lbs., at 5c.

40

" bolts and nuts, two keys, 2 lbs., at 5c.

10

To patt'n for engine frame, 2 days and 4 hours,

at $ 3,

$ 7 20

" man's time planning, 4 days and 4 1-2 hours,

at $ 4,

17 82

" men and lathe, turning and boring and drilling

cylinder, piston and piston rings, connecting

rod, piston rod, valve, cranks, etc., 6 days and

three hours, at $ 4,

25 20

" men's time, vice work and setting, 5 days and 3

hours, at $ 3,

15 90

" brass casting for connecting rod and sides, governor

and pump valve, 14 lbs., at 50c.

7 00

$ 108 07

The witness testified that the prices charged in said bill, were the usual and customary prices, at Detroit, for doing the work and furnishing materials for such articles; that after the letter of defendants, countermanding their order, nothing further was done towards the completion of said order, and that neither the engine, nor any of the articles mentioned in said bill, were delivered to said defendants.

The testimony of the witness was taken subject to objection by defendants, who claimed that under the circumstances detailed by the witness, the plaintiff could not recover--his declaration being for work and labor done, and materials furnished.

The witness, on his cross-examination, testified: That the prices charged in said bill, were the same prices which would be charged any person who should order the like articles made at plaintiff's foundry. He also testified that, from the order given by defendants, an engine, such as defendants wanted, could be built without any further specifications or instructions.

Delos E. Rice was also called as a witness for plaintiff, and testified that he was, and had been, for several years, in the foundry business, and that the prices charged in the plaintiff's bill of particulars were the usual prices.

On cross-examination, he testified that the prices charged were the usual prices, for which said articles would be manufactured and sold. He also testified that the articles mentioned in plaintiff's bill were such as might be used in the construction of any other engine of the same dimensions as that ordered by defendants, and that engines of those dimensions were often called for.

On re-examination, the witness testified that the prices charged in the plaintiff's bill were the usual prices where all parts of a complete engine were made, but that when separate pieces were made, or not a complete engine, the prices of some of the articles would be from thirty to fifty per cent higher; that those prices included the value of the materials, and also of the work done, and that in making the charges there would be taken into consideration the labor of hands, use of machinery and tools, fuel consumed superintendence, etc. He also testified as to the value of the materials, apart from the work and labor done.

The defendants introduced in evidence two letters from the plaintiff, which they claimed relieved them from the obligation to take the engine, and justified their countermanding the order for it. These letters do not become important to an understanding of the point passed upon in the case.

The defendants requested the court to charge the jury, among other things:

1. That, though they should find that plaintiff's agent accepted the order of defendants, at the time it was given, unless there were sufficient specifications of the engine to be built, to enable the plaintiff to finish the engine, without further instructions, then the order of the defendants, and the acceptance by the plaintiff's agent, constituted no contract between the parties.

2. That if they should find that the articles specified in the plaintiff's bill of particulars were made, and the work and labor therein mentioned was done by the plaintiff, under, and in fulfillment of, an agreement to construct an engine for the defendants, out of materials furnished by plaintiff, and, in consequence of the defendants countermanding their order, said engine was never completed, and that said articles were never delivered to or accepted by said defendants, their verdict should be for defendants.

3. That, admitting the facts to be as testified to by plaintiff's witnesses, he could not recover under his declaration, but should have declared specially against the defendants, for refusing to perform their agreement.

But the court refused to charge as requested by defendants; but charged the jury:

1. That if they should find that the defendants' order was accepted by plaintiff's agent, and that from that order the general form, size, and plan of the engine could be understood, and an engine constructed from that description, such order and acceptance constituted a contract between the parties, although specifications or instructions might be needed to enable the plaintiff to construct an engine in all particulars as desired by defendants.

2. That the plaintiff, under his declaration, could not recover for the materials used in the construction of the articles mentioned in his bill of particulars, but might recover for the work and labor proved to have been done in the making of, and upon said articles, prior to the countermand.

To which charge, and the refusal to charge as requested, the defendants excepted.

The jury rendered a verdict for plaintiff for eighty-eight dollars, and defendants brought error.

Judgment reversed.

Jerome & Swift, for plaintiffs in error:

Unless, by the order of plaintiffs in error, the thing to be done was so clearly specified that Wilson could know what to do (and his letters show it was not), such order and its acceptance could not constitute a contract. There could not be that mutual assent of the parties which is the very essence of a contract, when the parties did not know what they had agreed upon.

In no view of the case could plaintiff, on the facts proved recover under the common counts.

The work and labor was done and performed by the plaintiff below for his own benefit, and was to go into, and form part of the value of, the engine which he had contracted to sell. The articles he made he has on hand, and can dispose of, or use in the construction of another engine. The property in the articles has not vested in the defendants, neither have they a right to take them away. The authorities do not justify this action: 1 Chit. Pl., 348; Atkinson v. Bell, 8 B. & C., 277; Allen v. Jarvis, 20 Conn. 38; Moody v. Brown, 34 Me. 107.

Towle, Hunt & Newberry, for defendant in error:

The first instruction asked by defendants was properly refused, as calculated to mislead the jury: 2 Pet. 625. The question to be submitted was simply whether any engine could be constructed from the description given; not whether this particular engine could.

Plaintiff below was entitled to recover on the common counts for the labor performed by him: 5 Mich. 451; 3 Mich. 55; 1 Rich. 199; 9 Bing. 14; 2 M., G. & S., 336; 36 Eng. L. & Eq 540; 37 Ibid. 428; 20 Ibid. 545; 12 Mo. 456; 1 Denio 188; 10 Ired. 23; 22 Vt. 188; 5 B. Monr., 129; 1 Scam. 410; 24 Miss. 663; 2 Greenl. Ev., § 104. If we are wrong in this,...