Julius King Optical Co. v. Treat

• Citation: 40 N.W. 912,72 Mich. 599
• Court: Supreme Court of Michigan
• Decision Date: 28 November 1888
• Parties: JULIUS KING OPTICAL CO. v. TREAT.

40 N.W. 912

72 Mich. 599

JULIUS KING OPTICAL CO. v. TREAT.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, St. Joseph county; N. P. LOVERIDGE, Judge.

Action of assumpsit by the Julius King Optical Company against John E. Treat for the price of goods, alleged by plaintiff to have been sold for cash. Defendant pleaded the general issue, and contended that he was allowed a term of credit of four months. Judgment for defendant, and plaintiff appeals.

SHERWOOD, C.J.

This action is assumpsit, commenced by attachment on the ground of fraud in the sale of a bill of goods by the plaintiff to the defendant. The cause was tried by jury, and the defendant had judgment in his favor. Defendant claimed that he bought the bill of goods on four months' time and the plaintiff claimed they were sold for cash; that the goods were sold to defendant on the 15th of March, 1887; and that the bill thereof amounted to $419.40. Upon the trial the agent who sold the goods, when upon the stand, testified that he sold them to the defendant for the price named. This testimony was stricken out by the court, on motion of defendant's counsel, as being no statement of fact, but a conclusion of law.

The testimony should have been allowed to stand. The sale was not contested. The terms thereof were the principal question in controversy. Very many statements of facts involve questions of law, and when the conclusion involves all the facts sought, and necessarily follows therefrom, then such question is proper, as in this case. The statement of the plaintiff's agent that the defendant selected the goods from the samples shown was unobjectionable, and should have been admitted when offered by plaintiff's witness. The plaintiff's third objection is without merit, and was properly overruled. It was immaterial how the bill of goods ordered in the present case compared with other orders previously made by the defendant, and the ruling to that effect was correct. The fourth objection related to the written order which was made for the goods; but the record shows no ruling upon the objection, and we therefore cannot consider it. Under the fifth objection it does not appear what the counsel wished or desired to show by the witness. Until this appeared the court was not advised of its competency or relevancy, and it was therefore immaterial what the desire of the witness was in the matter. There was no error in this ruling. The sixth alleged error is that the defendant's attorney, after the plaintiff rested, offered to introduce in evidence copies of certain letters, upon the claim that they were material, and that he had demanded the originals and given the plaintiff a reasonable length of time to produce them. The copies were objected to on the ground that the notice to produce the originals was too indefinite, and that reasonable time for their production had not been given. It appears from the record that there was but bare time enough to produce them from Ohio, where they were, in the next mail, after being called for by telegram. While I think the notice was not sufficiently definite, it calling for all the letters which passed between the parties, or their agents, between certain dates, relating to the matter of the sale of the goods still, if this were not so, the time was...