Hudson v. Roos

• Decision Date: 01 November 1888
• Citation: 72 Mich. 363,40 N.W. 467
• Court: Michigan Supreme Court
• Parties: HUDSON ET AL. v. ROOS.

40 N.W. 467

72 Mich. 363

HUDSON ET AL. v. ROOS.

Supreme Court of Michigan

November 1, 1888

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

Action by Joseph L. Hudson and Campbell Symington, as copartners against Mary C. Roos, for goods sold and delivered. Plaintiffs obtained judgment. Defendant brings error.

MORSE J.

This case was tried before Hon. GEORGE GARTNER, one of the circuit judges of Wayne county, on the 11th of June, 1888, without a jury. The court filed written findings of fact, and entered judgment in favor of the plaintiffs for $208.28 and costs.

The first error assigned is this: The cause had regularly been assigned, according to the practice of the court, for trial as a jury case on the 8th day of June, 1888. When that day arrived the defendant's counsel was engaged in the recorder's court, in a criminal trial. The court refused to hold the case open until defendant's counsel was at liberty from the criminal trial. The counsel thereupon, to prevent the case going by default, consented to try the case on the following Monday, June 11th, without a jury, not waiving their objection to the refusal of the court to hold over or adjourn said cause until counsel was disengaged from the case then on trial in the recorder's court. Neither did they waive their right to a jury trial. This is the claim of the facts set out in the brief of defendant's counsel of the proceedings on the 8th of June. We must be governed by the bill of exceptions. The bill states that the case was assigned for jury trial, June 8, 1888; that on that day defendant's counsel was engaged in the recorder's court, in the trial of People v. Margaret Harrison, for a felony; that, on the calling of the case, the court, on application of defendant's counsel, set said case down for trial by the court June 11, 1888. No record of any application to have the case held over or adjourned, nor any refusal of the court to do so, appears, and no objection to a trial before the court was made, either on the 8th or 11th of June. No exception to the proceedings was taken. The jury was as completely waived as possible, and nothing appears in the record but what such waiver was a voluntary one.

The main controversy in the case was over a large pier-glass,-one of three, the other two being small ones; the price of the glasses being agreed upon at $125 for the three. The glasses were accepted and delivered apparently all right. Subsequently defects were noticed in the large glass. These defects were in the silvering. The plaintiffs, upon being notified of the defects, took the glass away, with an agreement to replace it. The glass was shipped to New York to be resilvered. There is a dispute between the parties as to the length of time before it was to be replaced. The mirrors were first put up in the store of the defendant July 4, 1887. Madame Roos claims that the mirror, when taken away, was to be replaced within two or three weeks. There was no agreement that it must be done in that time, but plaintiffs promised it would be back in that time. She waited from about the middle of July until the 6th of September, importuning them at different times to hurry up with the glass, as she was in great need...