Kimball & Austin Manufacturing Co. v. Vroman

• Decision Date: 09 January 1877
• Citation: 35 Mich. 310
• Court: Michigan Supreme Court
• Parties: The Kimball & Austin Manufacturing Company v. Seth Vroman

35 Mich. 310

The Kimball & Austin Manufacturing Company v. Seth Vroman

Supreme Court of Michigan

January 9, 1877

Heard October 19, 1876; October 20, 1876 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Kalamazoo Circuit.

Judgment affirmed, with costs.

Severens, Boudeman & Turner, for plaintiff in error, on the point as to the amendment of the declaration, cited: Final v. Backus, 18 Mich. 218; Fowlkes v. Memphis, etc., R. R. Co., 38 Ala. 310; Maritime Bank v. Rand, 24 Conn. 9; Willink v. Renwick, 22 Wend. 608; Johnston v. Magrant, 1 McCord, 484.

The plaintiff's declaration combined two classes of counts, common and special. In the special counts the plaintiff alleged a warranty of a portable steam engine sold by the defendants to the plaintiff, and sought to recover damages for the breach of that warranty. By the common counts, as amplified by his bill of particulars, he sought to recover for the consideration paid by him for the engine upon the theory that the contract of the sale had been rescinded.

Upon trial the defendant objected from the beginning that the plaintiff must take his position either to treat the contract as still of force or as rescinded, and proceed accordingly. The court below held that the plaintiff might "blow hot and cold," and suffered the case to go on to the close of the testimony against the objection repeatedly urged of the time-honored maxim. The plaintiff has recovered a large judgment, but whose is the engine? There has been no change in the declaration; the issue and judgment cover it. If the damages recovered were for breach of the warranty, the engine is the plaintiff's below. If the damages were the consideration paid for the engine, then it is the defendant's. This uncertainty shows the consequence of permitting a plaintiff to play fast and loose, as was done in the court below.

The position of the plaintiff was inconsistent. He could no more blow double, uno flatu, than he could in two successive suits. There is high authority for saying that this declaration, as it stood, with the bill of particulars, was fatally bad: Jewett v. Petit, 4 Mich. 508.

If that were not so he should have been compelled to choose his position: Jewett v. Petit, 4 Mich. 508; Thompson v. Howard, 31 Mich. 309, and cases cited in opinion; Young v. Broadbent, 23 Ia. 539; Wetmore v. McDougal, 32 Mich. 276; Buckland v. Johnson, 15 C. B., 145.

It is true that the purchaser of the engine had the right, if it was warranted and there was fraud on the part of the seller, to rescind and recover back the consideration, though the great weight of authority restricts this right to those cases where the warranty was fraudulent: Strut v. Blay, 2 B. & Ad., 460; Parson v. Sexton, 4 Com. B., 899; Gumputz v. Denton, 1 Cromp. & M., 207, and Hare & Wallace's note at p. 209; Thornton v. Wynn, 12 Wheat. 183; Lyon v. Bartram, 20 How. 149; Cary v. Gruman, 4 Hill 625; Kase v. John, 10 Watts 107. But he must act consistently. He may not treat the contract as rescinded for one purpose, and of force for another: Barker v. Cleveland, 19 Mich. 230; Allegans contraria non est andiendas, Broom's Legal Maxims, 127.

The court below erred as to the proper measure of damages.

The defendant below requested the court to charge the jury that no recovery could be had without proof of the difference in value between what the engine was worth and what it would have been if as warranted, and that as there had been no proof as to what the value of the engine was, the plaintiff could not recover. This the court refused, and after a good deal of misleading discourse about the "rule of compensation," finally charged the jury: "If you find that there were no promises made by the defendants to the plaintiffs, on which they relied, that this engine was suitable and competent, if properly used, for which the defendants, as machinists, furnished it to plaintiffs, then said difference in value would be the rule. And if the evidence, as counsel have seen fit to leave it to you in this case, does not furnish you that precise difference, this is not your fault, and you will be authorized in that case, if you so find, to determine it, if you find it necessary, by such evidence as you have before you, having the entire range from nominal damages to the whole value."

We cannot undertake to completely interpret this proposition, but there are two things deducible from it: first, that if no proof had been offered showing the value of the engine as it was and as it was warranted, the jury might properly visit the defendant with the consequences; and, second, in doing so they might inflict damages anywhere from a nominal amount up to the whole value of the engine. The jury gave themselves a boundless field under this charge, as the result proves.

Now, waiving for the moment the original view as to the onus probandi, we submit that there was nothing about the nature of this case which created any difficulty as to the measure of damages if the plaintiff was entitled to recover any. It was a case where the substantial elements existed for computation, and was one to which the law applies a definite rule as to damages. There was no occasion for letting the jury go adrift to find such damages as they might think proper. The court should not let go the helm if there is light to guide by.

The facts did not bring this case within the rule laid down in Allison v. Chandler, 11 Mich. 542. The general rule is too familiar to require the citation of authority.

The court also refused to charge the jury that the measure of damages, under the first count of the declaration, in case of a breach, would be what it would cost to put the engine in the condition in which it was warranted to be, and that not specifically for the purpose of running a threshing machine, but for any purpose to which the engine would be suitable. This request stated the rule correctly. There was nothing in the first count which referred to the engine as one warranted to be sufficient for the purpose of propelling a threshing machine. The court erred in refusing to charge accordingly.

The court charged the jury at plaintiff's request as to what would constitute a warranty, as follows: "No particular form of words is necessary to constitute a warranty; and if the defendant, at the time of the sale of the engine, represented to the plaintiff that it was in good condition and would do good work and would run a threshing machine, or used words of like import, and the plaintiff purchased the engine, relying upon the truth of such representations, then the legal effect of such representations would amount to a warranty of the engine as represented."

This was wrong. The facts assumed would not amount to a warranty. It would be necessary that the vendor intended his representation as a warranty, or, what is equivalent to the same thing, should have supposed the vendor to have understood him as warranting the thing sold. The facts assumed would make a case of simple representation, and would not take the case out of the operation of the rule caveat emptor. To use the words of Parsons on Contracts, Vol. 1, p. 464, note 0, 3d ed: "The authorities from Chandelor v. Lopus, to the present day all agree that a bare affirmation not intended as a warranty will not make the vendor liable." The court afterwards stated the rule with substantial correctness, but immediately explained that, as meaning not what if fairly imported, but something altogether different, so that the error was not cured.

There are also some erroneous rulings in regard to the admission of evidence.

One Charles Barrett, a workman in the employment of the defendant, had been sent out to the plaintiff's to examine the engine and do what he found to be necessary to put it in order. After he had got through and was starting for home, he made, as was claimed by the plaintiff, a statement about the engine to one Cannon, and also another statement to one Franklin, disparaging the engine. Neither of these statements were made to the plaintiff (though if they were we doubt their admissibility), but to strangers. Such statements were hearsay, and were erroneously admitted.

Wm. R. Gibson, the foreman of the defendant's shop, was called as a witness. The plaintiff had introduced evidence of what Mr. Gibson stated about the engine at the time of the purchase, and this testimony had been admitted upon the ground that Gibson was a corporator of the defendant. We do not stop to inquire whether that ground was correctly assumed or not. Gibson was asked by the defendant's counsel whether any thing was said about selling the plaintiff a new engine. This was objected to. Defendant's counsel offered to prove that the defendant proposed to sell the plaintiff a new engine, but the plaintiff said he wanted a second-hand engine. This the court ruled out upon an objection which stated no ground on which it was made. No sufficient reason for its exclusion can be given. It was a part of the res gestoe. The plaintiff, in his second count, had alleged that the defendant warranted the engine as good as new. Charles Vroman gave testimony tending to support the allegation. The offered testimony tended strongly to disprove that, and we insist that it was erroneously excluded.

May & Mason, for defendant in error, on the question of the amendment to the declaration cited: Comp. L. 1871, ch. 190; Holdridge v. F. & M. Bank, 16 Mich. 96; Final v. Backus, 18 Mich. 218; Wight v. Hale, 2 Cush. 486.

As to alleged errors in admitting evidence against defendant's objection that there was a misjoinder of counts: (1) the objection came too late and should have been taken by demurrer:Seiber v. Price...