Liggett Spring & Axle Co. v. Michigan Buggy Co.

• Court: Michigan Supreme Court
• Writing for the Court: LONG, J.
• Citation: Liggett Spring & Axle Co. v. Michigan Buggy Co., 106 Mich. 445, 64 N. W. 466 (Mich. 1895)
• Decision Date: 27 September 1895
• Parties: LIGGETT SPRING & AXLE CO. v. MICHIGAN BUGGY CO.

64 N.W. 466

106 Mich. 445

LIGGETT SPRING & AXLE CO. v. MICHIGAN BUGGY CO.

Supreme Court of Michigan

September 27, 1895

Error to circuit court, Kalamazoo county; George M. Buck, Judge.

Action by the Liggett Spring & Axle Company against the Michigan Buggy Company on a contract. Judgment for defendant, and plaintiff brings error. Affirmed.

Osborn, Mills & Master, for appellant.

Boudeman & Adams, for appellee.

LONG J.

The defendant is engaged in the manufacture of vehicles of various kinds at Kalamazoo, this state. It employs a great number of men, and keeps constantly on the road a large number of salesmen. It also has a branch salesroom at St Paul, Minn., and many salesmen are sent out from that point. It has no facilities for making axles, but purchases them from manufacturers. Prior to September 17, 1892, it had purchased its axles from the Sheldon Axle Company, of Wilkesbarre, Pa. Many of these axles were made from special patterns, to be used on special styles of vehicles, and it was not possible to use any other on buggies and carriages so made. These styles had become staple in the business. In September, 1892, a representative of the plaintiff company called upon the defendant, and solicited its trade; and a contract was entered into by which the defendant agreed to purchase from plaintiff all the axles it was to use in its business up to 10,000 sets. In the contract it was specified "Axles guarantied to interchange with samples sent of Sheldon's axles." Mr. Lay, the secretary of the defendant company, testified, under objection, to the arrangement with plaintiff's agent, as follows: "I told Mr. Black that it meant a good deal to us to make a change of this kind, and I says we cannot think of changing unless we could get those axles just the same as we have been getting them. I says the Sheldon Company, they always sent these bent to form to fit our patterns, and I says, 'You can readily see the necessity of that.' I told him that we had our axle beds cut out in large numbers, and we had to have our axles to fit that shape. I called his attention to our end spring buggy which has a drop axle. That was an axle that we was particular about. 'Oh, well,' he says, 'we can do that just as well as Sheldon, and will do it for you. All we want is your samples now. Before you send for axles, you fix them up,-your samples,-and send them along; we shall shape them to the axles just to your patterns.' And he wanted to know about what time we would want our axles to come in. I told him that during November and December we were very busy with cutters, and we would have to have our axles to come in so we could commence on them right after we got through our cutters, probably the last of December or the first of January. 'Well,' he says, 'you will have to get in your specifications then by about the first of December.' I told him I thought we could do that. So we drew up the contract, and Mr. Lane signed it. Q. Well, have you stated now all the talk that you recall that you had at that time with him? A. Well, all that was material in regard to that. Of course, Mr. Black went on to tell- He said that he was taking a good many orders at that price that he was making,-seemed to catch them. It was a price below what the others were making. I told him that we had been getting our axles from the Sheldon Axle Company of Wilkesbarre, Pa. We had gotten our axles of them [Sheldon] the year before. Q. Now, you may state what, if anything, was said at that time about the setting at the collar when Mr. Black was there. A. Well, that was,-we referred to the number 53 axle; that is, our end spring buggy. That was a drop on the axle, and we told him that he had to have it set right at the collar. We explained to him why. The shape of the axle is different. It was made on a kind of a little arch,-a drop; and, unless it is shaped right at the collar, the wheel won't run on a plumb spoke." Mr. Black was then and there shown the axles which were afterwards sent his company as patterns from which to make such axles. The matter was gone over somewhat at this time, and the contract entered into between the parties. The defendant claims he was induced by Mr. Black to enter into this contract because of the reduction in the price of the axles which he made, and because of his representations and promises that the plaintiff would set the axles at the collar, bend them, and make them of the same shape and style for defendant and furnish them to it just as the Sheldon Axle Company had done the previous year. The defendant sent samples and specifications to plaintiff December 6, 1892, and on the same date sent an order for a large number of axles. The plaintiff received defendant's samples December 17th, and on the 24th replied as follows: "Pittsburg, Pa., Dec. 24, 1892. Michigan Buggy Company, Kalamazoo, Mich.-Gentlemen: Your favor of 22d. It is simply a question of time, gentlemen. Had you sent samples right along, as you should have done, immediately after the contract was made, and allowed the specifications to follow within the time specified in contract, it would have been all right. To get out all these patterns and forms will require a month to six weeks' time. We thought you would rather have this order come regular. Which shall it be?" Defendant replied to this letter as follows: "December 26th, 1892. Gentlemen: I am in receipt of yours of the 24th, and in reply will say that we want the axles as per agreement, made to fit our forms, bent to shape as per sample. We must have them right away. We know that it does not take a month or six weeks to get out a form to fit these axles to." Plaintiff replied: "December 28th, 1892. Dear sir: Your letter 26th. Replying the same, we beg to say that there is no agreement, either in the contract or outside of it, providing for the forming of your axles to pattern. There would be no serious objection to this had you advised us and sent the samples promptly after the contract was made. We are now very busy, and it will not be possible to get out these forms and make preparations to do the work in less than the time stated,-a month or six weeks. You state that you must have the axles promptly. It would not be possible to make shipment in less than thirty days, regular axles. Give us your definite answer at once, stating whether you will accept the goods regular shapes or not." To this defendant replied: "December 31, 1892. Gentlemen: We are in receipt of yours of the 28th. Please hurry out the axles ordered, regular; and we want those ordered shaped to pattern, shaped as ordered, even if it takes a...