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...
