Kusterer Brewing Co. v. Friar

• Citation: 58 N.W. 52,99 Mich. 190
• Court: Michigan Supreme Court
• Decision Date: 27 February 1894
• Parties: KUSTERER BREWING CO. v. FRIAR et al.

58 N.W. 52

99 Mich. 190

KUSTERER BREWING CO. v. FRIAR et al.

Supreme Court of Michigan

February 27, 1894

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action by the Kusterer Brewing Company against James Friar and Martin Friar on an account. There was a judgment for plaintiff, and defendants appeal. Reversed.

Dunham & Preston, for appellants.

Peter Doran, for appellee.

LONG J.

This action is to recover for a balance due on account. Plaintiff is a manufacturer of beer at Grand Rapids, and commenced selling to defendants in November, 1882. Defendants furnished hay to plaintiff at an agreed upon price from year to year. The sales of beer continued until March, 1890. There is no dispute over the accounts between the parties except the price to be charged for the beer between certain dates. Defendants were carrying on a hotel at Berlin, Ottawa county, in 1882, and commenced taking beer there in that year. In 1888 they opened a saloon in the township of Walker now a part of the city of Grand Rapids, and continued taking beer from plaintiff at that place. Plaintiff, in its account charged the beer at seven dollars per barrel at both places up to August 1, 1889, and after that at six dollars per barrel. Defendants claim that the beer should have been charged only at six dollars for the whole time. The court below found the facts and law. In the second finding of fact it is stated: "That, with every sale of beer made to the defendants while they were in business in Berlin, a bill of the same was sent to the defendants, and received by them, and the price of the same stated at the sum of seven dollars per barrel; and to all such beer the price became fixed at seven dollars, by reason of sending said bills, which bills became an account stated, by reason of the acquiescence of the defendants, no objection being raised by them to such price." Third: "That, when said defendants removed their business to the city of Grand Rapids, they continued to receive beer from the plaintiff, the same being delivered by wagon, and the price of the same was entered in their pass book by the agent of the plaintiff at seven dollars per barrel, of which fact defendants had full knowledge; and no objection being made to the price charged, it became fixed at seven dollars per barrel." Fourth: "That afterwards, and on or about March 12, 1890, a settlement and accounting was had between the parties, and the balance due agreed upon. Each recognized and acquiesced in the price at the rate of seven dollars per barrel for all of said beer." Fifth: "That after said 1st day of August, 1890, there is no claim that they were charged any greater price than six dollars per barrel, upon which there is no complaint." Sixth: "That the delivery of the beer to the defendants by the plaintiff, as mentioned in the bill of particulars, is stated by defendants, so there is no dispute upon that question. I further find that the claim of plaintiff against the defendants is the sum of $119.67." Seventh: "I find as matter of law, on the facts found and from the evidence, that the plaintiff is entitled to recover the sum of $119.67."

Exceptions were taken to these findings by the defendants, who asked the court to substitute certain findings in place of those found substantially as follows: (1) That in November, 1882, plaintiff's agent called upon defendants, and solicited their trade, and stated that plaintiff would sell and deliver them beer as cheap as they could get it anywhere else, and they agreed upon these terms to take the plaintiff's beer; that such arrangement was continued during all the time beer was furnished to them, up to March, 1890. (2) That with each delivery of beer there was sent to defendants a bill, which stated the beer at seven dollars per barrel; that no settlement was had at any time between the plaintiff and defendants since 1882, and no settlement was attempted until March, 1890, which resulted in no agreement as to the amount due. (3) That in 1888 defendants opened a saloon in Grand Rapids, and there purchased and received beer from plaintiff; that the agent of plaintiff called upon defendants in 1888, and sold them therefor at the rate of seven dollars a barrel; that one of defendants then paid plaintiff's agent seven dollars per barrel, and stated to the agent that they would buy no more beer of plaintiff at that price, and that the barrel so purchased was the only one for which they ever paid cash; that afterwards the agent of plaintiff called upon defendants, and stated that plaintiff would sell and deliver to them at six dollars per barrel; that, after an amount of beer had been delivered on this contract at six dollars a barrel, one of defendants saw plaintiff's agent mark down in the pass book seven dollars per barrel for beer, and saw that all of the beer had been so delivered to them at their place of business in Grand Rapids; that defendants then called the attention of the agent to these entries at seven...