Jennison Hardware Co. v. Godkin

• Decision Date: 10 March 1897
• Citation: 70 N.W. 428,112 Mich. 57
• Court: Michigan Supreme Court
• Parties: JENNISON HARDWARE CO. v. GODKIN.

70 N.W. 428

112 Mich. 57

JENNISON HARDWARE CO. v. GODKIN.

Supreme Court of Michigan

March 10, 1897

Error to circuit court, Bay county; Andrew C. Maxwell, Judge.

Action by the Jennison Hardware Company against John Godkin. There was a judgment for plaintiff, and defendant brings error. Affirmed.

C. L Collins, for appellant.

J. L Stoddard, for appellee.

LONG C.J.

The plaintiff commenced the present suit in the circuit court for the county of Bay, filing a declaration therein upon all the common counts in assumpsit, with the following bill of particulars annexed:

Bay City, Mich., Oct. 25, 1895.

The Jennison Hardware Co. Sold to John Godkin.

1895.

June 27. 6 No. 5 dies for park swage, 75 .. $ 4 50

July 19. 2"52 ft. x 10 x Ga.

14 band saws, $182 $364 00

Less 50"10 per cent ............... 163 80

Boxing saws ......................... 1 25

Prepaid express .................... 11 45

-------

$181 00

A copy of this account, together with an affidavit that the same was a correct account of the claim of plaintiff against the defendant over and above all legal set-offs, was served upon the defendant. To this declaration the defendant interposed a duly-verified plea in abatement, which recited that: "Before the filing of the declaration in this suit, to wit, on the 10th day of October in the year 1895 this defendant commenced suit against the above-named plaintiff, in justice court, before Alfred M. King, a justice of the peace in and for Bay City, in the county of Bay and state of Michigan, and this defendant, in that suit, which is an action in assumpsit, has declared against the defendant therein,-being the plaintiff in this suit,-in a cause of action the determination of which involves, and which suit will adjudicate, the cause of action as is set forth in the plaintiff's declaration in this suit, by means of which there is in said justice court an action of assumpsit pending, in which and whereby the same cause of action will be litigated and adjudicated in this suit; and this defendant further says that the parties in this and the said former suit are the same, and not other or different parties, and that said former suit, so brought and prosecuted, is still pending in the said court; and this the said defendant is ready to verify. Wherefore he prays judgment," etc. The plaintiff in this suit joined issue upon said plea by filing a replication thereto. The issue thus framed on the plea in abatement came on to be heard before the court without a jury, and after hearing the evidence therein the court found the said plea to be true, and that a determination of said suit involves and will adjudicate the cause of action set forth in the plaintiff's declaration in this suit, except the claim of plaintiff in this suit on account of the item of goods sold at $4.50. The court further found that the action in justice court had been determined in favor of the plaintiff in that suit, and had been appealed by the defendant in that suit to the circuit court, wherein and whereby the same cause of action will be litigated in that suit as will be litigated and adjudicated in this suit, and that they were the same parties as in the former suit. In the declaration in that suit it is alleged: That the defendant sold to the plaintiff a certain band saw, at and for the price of $92.75. That it was a part of the agreement with the plaintiff, in the sale of the band saw, that it should be 52 feet in length by 10 inches in width, and should be of even thickness, and of the thickness of 14 gauge, and suitable for, and of the quality and description to do, the work required of such band saws. That after the purchase the plaintiff received it from the defendant at Bay City, and shipped it to his mill in Chippewa county, paying for boxing, freight, and teaming the sum of $7.55. That the plaintiff put the same into his mill, to operate in the proper manner, when he was compelled to take it down by reason of defects found therein. These defects are stated to be that it was thicker than agreed; was a 13 gauge instead of 14; was of uneven thickness, and would not do the work that could be done with a 14 gauge. That, by reason of its thickness and unevenness, it cracked in working, became useless, and plaintiff was compelled to shut down his mill, and lost the use of it for several days, by reason of such defects. That the plaintiff afterwards shipped said saw to Bay City, and tendered it to defendant, who refused to accept the same. And that by reason of the foregoing facts, and by breach of the conditions of the sale, he lost the price of said saw (which in this action he seeks to recover), and the sum of $7.55, incurred in taking the saw to his mill, and the sum of $12, in taking it from his mill to Bay City, and the sum of $15 in repairing said saw. A second count was added to the declaration, in which damages are claimed for the loss of time the mill was kept idle, and the loss of time of men employed about the mill, and also an alleged offer to return said saw to defendant, who refused to receive the same, to the plaintiff's damages of $290. An amendment to the declaration was also made, alleging the loss of sawing 420,000 feet of lumber in the season of 1894; also, alleging that when the said plaintiff discovered the condition of said saw, and its defects, he notified defendant thereof, and, upon defendant's being advised that the saw was 13 gauge, instead of 14, the defendant refused to furnish the 14 gauge, by reason of which fact the plaintiff was compelled to and did order two additional saws, and was compelled to and did operate...