Mansfield Mach. Works v. Lowell Common Council

• Decision Date: 21 July 1886
• Citation: 29 N.W. 105,62 Mich. 546
• Court: Michigan Supreme Court
• Parties: MANSFIELD MACHINE-WORKS v. LOWELL COMMON COUNCIL.

29 N.W. 105

62 Mich. 546

MANSFIELD MACHINE-WORKS v. LOWELL COMMON COUNCIL.

Supreme Court of Michigan

July 21, 1886

Error to Kent.

J.C. Fitz Gerald, for plaintiff and appellant.

Blair, Kingsley & Kleinhaus, for defendant.

MORSE J.

The plaintiff and defendant entered into a written contract, on the twenty-sixth day of December, 1884, for the sale by the former and purchase by the latter of a steam fire-engine, and all attachments. The first portion of the contract consists of a minute description of the engine and its machinery, not necessary to be set out for any purpose involved in the decision of the case. The latter part of the contract is as follows: "The price of said engine to be fifteen hundred dollars, and to sell three hundred feet of 2 1/2 inch 4 ply rubber hose for $40, and proper couplings, all to be delivered on cars at Mansfield, Ohio; $540 cash, payable when engine and hose are accepted, balance in equal payments,--first, on or before six months; second, on or before eighteen months,--with interest at six per cent. from date of acceptance. First party guaranties freight from place of shipment to Lowell not to exceed $60. Said hose is hereby warranted, with ordinary care and usage, to keep in good and perfect repair four years, by first party, from date of acceptance. The date of delivery, as named above, is subject to possible delay from accident or other cause unavoidable delaying manufacture or shipment. The party of the second part bind themselves, or their legal representatives, to take the above-described engine and attachments and to pay the money on or before the time and in such manner as above specified. In case of any defects in the material or workmanship of said machinery, said first party are to make the same good without charge, and of any such defects notice must be given within ten years from the date of the delivery of said engine; otherwise all claims whatever are expressly waived by said second party. It is also understood that no warranty, or verbal understanding or agreement of any kind exists in relation to this contract other than what is herein expressly stated. And it is further agreed that the title of ownership and right of possession of said engine and boiler shall remain in and with the party of the first part until all payments of principal and interest are fully paid."

The contract was printed, except dates and names of parties, and the first paragraph above. This paragraph was written in said contract by John M. Matthewson, the village attorney. The word "ten" before "years," in the next to the last paragraph, was also written by him, the word "two" in the printed contract being stricken out. January 13, 1885, the engine was shipped by plaintiffs, at Mansfield, Ohio, by a route selected by defendant. January 17th the engine arrived at Lowell. The defendant paid the freight thereon, and put the same in its engine-house, and notified plaintiff of its arrival, and requested him to send a man to start it. January 26th Mr. Coon, an agent of plaintiff, arrived at Lowell, and an inspection and trial of the engine was had on that day, and also on the twenty-eighth of the same month. On this last day of the trials the common council of the village passed a resolution rejecting the engine under the contract as not proving satisfactory, of which action the village recorder notified the plaintiff on February 9th. Mr. Coon was present at the meeting when this resolution was passed, and there requested the privilege of leaving the engine in the village engine-house, and also the privilege of another trial of the engine, at his own expense within 10 days, which, upon motion, was granted by the village council. On the fourth day of February another trial was had, and on the next day a meeting of the common council was held, at the request of Mr. Coon, to talk over the matter of the engine with them. At this meeting, after hearing Mr. Coon, as shown by the record, a motion was made to rescind the resolution rejecting the engine, which was lost, all the members present voting no, and only one being absent.

The council met again February 9th, and passed the following resolution: "Resolved, that the time having expired that was granted to the Mansfield Machine-works, at their request, to store their steam fire-engine in the engine-house, and the same now remaining therein, that the recorder be, and he is hereby, instructed to notify said company to remove the same from said house." The notice was mailed to plaintiff the same day.

The company did not remove said engine, and it has stood in the village engine-house ever since, but has never been used by the village for any purpose. W.S. Coon testified on the part of the plaintiff that during the trials he simply acted as engineer, and that he never, at any time, took said engine out of the possession or control of the defendant, and denied that he had any authority whatever to make any arrangement on behalf of plaintiff. He signed the contract of sale for the plaintiff, but had no power to act for plaintiff after such sale; that he generally went with the engines he sold, and attended the trials of the same. He did not deny asking for a new trial of the engine, or storage for the...