McGraw v. Fletcher

• Citation: 35 Mich. 104
• Court: Supreme Court of Michigan
• Decision Date: 24 October 1876
• Parties: Thomas McGraw and others v. George N. Fletcher

35 Mich. 104

Thomas McGraw and others v. George N. Fletcher

Supreme Court of Michigan

October 24, 1876

Submitted on Briefs October 12, 1876

Error to Wayne Circuit.

This action was brought bye defendant in error against Eber B Ward in his lifetime, and was being tried before the referee at the time of Mr. Ward's sudden death. The suit was revived against plaintiffs in error, who were appointed special administrators pending the contest over the will of the deceased. After the revivor, the trial proceeded before the referee.

Judgment affirmed, with costs.

T. C Owen and Moore & Moore, for plaintiffs in error, cited: 1 Pars. on Cont., 586 and note a; Keates v. Cadogan, 10 C. B 591; Brown v. Eddington, 2 M. & G., 279.

George E. Wasey and D. C. Holbrook, for defendant in error, cited: Pars. on Cont. (6th ed.), 585-7; Keates v. Cadogan, 2 E. L. & Eq., 320; Chanter v. Hopkins, 4 M. & W., 399; Brown v. Eddington, 2 M. & G., 292; Rice v. Forsyth, 41 Md. 389; Charlotte v. Jessop, 44 How. Pr., 447; Bartlet v. Hoppock, 34 N. Y., 118.

OPINION

Graves, J.

Fletcher brought this action to recover the unpaid balance arising on a written contract for the sale by him of a patent diamond drill to decedent Ward. The cause was referred and the referee reported the facts and found the plaintiff below was entitled to recover three thousand nine hundred and twenty-nine dollars and eighty-three cents. Plaintiffs in error excepted to the report, but the court overruled the exceptions and entered judgment as recommended by the referee.

Two objections are made: first, in ruling that on the facts as found there was no express warranty that the machine would do the work for which it was purchased; and, second, in deciding that there was no implied warranty to that effect. The referee finds that Fletcher knew Ward purchased with the design and for the purpose of using the machine in prospecting for minerals in Missouri and elsewhere, and that it proved practically worthless in that business. If there was an express warranty, there was no chance for implication. Was there any express warranty that the machine would work with any efficiency in prospecting? We think not. Plaintiffs in error rely on a passage in the contract that the machine was "to be complete in everything for working." But this occurs as a term in the stipulation for the delivery of the machine by Fletcher at the depot in Chicago for shipment to such place as Ward should direct. It had no reference whatever to the ability of the scheme of the machine to work well in prospecting or at all. It was an agreement that the machine, such as it was in principle and range of usefulness, should be delivered prepared and equipped to do what in principle it was capable of doing.

Was there any implied warranty? Plaintiffs in error...