Hunt v. W. F. Hurd Co.

• Decision Date: 03 April 1919
• Docket Number: No. 15.,15.
• Parties: HUNT et al. v. W. F. HURD CO.
• Court: Michigan Supreme Court

205 Mich. 142
171 N.W. 373

HUNT et al.
v.
W. F. HURD CO.

No. 15.

Supreme Court of Michigan.

April 3, 1919.

Error to Circuit Court, Wayne County; Guy M. Chester, Judge.

Action by Charles Hunt and others against the W. F. Hurd Company. Judgment for plaintiffs, on appeal from a justice, and defendant brings error. Affirmed.

Argued before BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ.

[171 N.W. 373]

Sherman D. Callender, of Detroit, for appellant.

Douglas, Eaman & Barbour and Otto Wismer, all of Detroit, for appellees.

FELLOWS, J.

On May 4, 1915, defendant wrote plaintiffs inclosing an order for five cars of ‘1st and 2nds Kiln dried plain red oak, * * * graded national rules,’ at $51 per thousand, f. o. b. Detroit, ‘terms 2 per cent. 10 days after arrival.’ On May 10th the plaintiff accepted the order. In its letter of acceptance of the order the following appears:

‘We enter your order, dated 5/4/15, No. 7584, and accept and agree to fill same upon the conditions as herein stated. * * *

‘And it is here agreed that if any shipment on this order is found to be short in measurement, or different grade, or if there is any complaint, to be made about lengths, dryness, widths, or any other feature of said shipment, all of the shipment shall be held intact subject to our inspection or order, and said complaint made within five days after the car is unloaded, otherwise it is understood that no allowance will be made and our invoice shall be paid in full. * * *

‘If your order is not correctly entered above and the conditions of this contract agreeable, we will expect immediate advice, otherwise we will expect you to be governed by same.’

Four carloads of lumber were shipped on the contract, arriving at Detroit as appears by the freight bills June 15th, June 18th, June 25th, and June 28th. These shipments, according to the contract price, amounted to $2,012.81. The freight was $308.45. It appears from the record that, upon the arrival of these cars, the lumber was inspected by a competent inspector in the employ of defendant and approximately 6,200 feet found by him to be below grade. On July 29th defendant mailed to plaintiff a voucher check for $1,528.20 containing the following words: ‘The above amount in full settlement of the within account.’ The amount of this check was arrived at by computing the amount of lumber which inspected to grade at $51 per thousand, the amount inspected below grade at $33 per thousand, and deducting freight and...