McGraw v. Sturgeon
| Decision Date | 08 July 1874 |
| Citation | 29 Mich. 426 |
| Court | Michigan Supreme Court |
| Parties | Mark McGraw v. Thomas Sturgeon |
Heard May 12, 1874
Error to Wayne Circuit.
Assumpsit. Defendant brings error. Affirmed.
Judgment affirmed, with costs.
B. T Prentis submitted a brief for plaintiff in error.
A. F Wilcox, for defendant in error.
This was an action of assumpsit for the price or value of certain wood sold by Sturgeon to McGraw. It was brought before a justice of the peace, and removed by McGraw to the circuit by special appeal, and judgment there given, as it had been below, for Sturgeon.
The errors alleged apply in part to rulings on the trial, and in part to questions of jurisdiction.
Both parties testified to a specific contract for the sale of the wood at given prices. They did not agree as to the terms of measurement. The defendant below being on the stand, the court refused to allow him to testify what the custom was in buying wood in regard to measurement, whether by shipping-bill measurement or actual measurement. But as there was no dispute but that there was a specific agreement, the custom, if there was one, was of no consequence.
A dispute of fact seems to have arisen in the case as to whether some of the wood had not been sold and removed before the delivery and measurement had been completed. One Brossard having been examined at large for McGraw, had sworn that none had been so removed. He was asked on cross-examination whether it was not common for persons to come there and buy wood by the pile and haul it away themselves. This was objected to, but admitted.
We think it proper cross-examination. It bore somewhat on the probabilities, and there was room in such a controversy to question whether the witness might or might not have known all that occurred during the time of the unloading.
The plaintiff below swore that the wood was to be taken at the bill measurement. The defendant below swore that it was to be taken at actual measurement. In submitting the case to the jury the court told them this was the first question to be settled. This was excepted to, and the ground of error now alleged is that the court had before ordered all evidence concerning the contract to be stricken out, except on the question of value, and that therefore there was nothing before the jury as to measurement.
The record is obscure as to just what was meant by the court in declaring that proof stricken out. But it had been heard fully by the jury, and if it was proper to be considered, there was no difficulty in getting at it.
We can see no reason for excluding it. The contract had been completely performed, and the price earned, whatever it was, and however calculated. The common counts were proper for the recovery of such a claim, and the whole contract was open to proof under them. The charge was correct, and if we are to suppose the court really meant to withdraw the evidence before, it was quite proper to restore it. Both parties had exhausted their proofs on this point before they were ruled out.
Upon the other questions as to value, it is enough to say, that a party cannot complain of the reception of evidence of value, when he has opened the door himself, and when the verdict did not exceed the contract price.
The principal argument was made on the question of jurisdiction. The case was once tried before the justice by jury, who disagreed. McGraw demanded a second jury, but refused to pay the fees, and the justice declined to have one summoned without. McGraw refused to attend the trial without a jury, and the case was therefore tried ex parte. In the appear affidavit these facts were set out as special grounds of appeal. The circuit court refused to sustain these objections, and the case was tried there by a jury, who agreed upon a verdict.
The statute gives a certain fee to every juror "sworn" in a cause (C. L., § 7450), to be paid in the first instance by the party requiring such jury. A jury is waived unless demanded as prescribed by law.--Const., Art. VI., § 27. The justice's act requires payment of jury fees to be made in advance.--Comp. L., § 5351. If the jury are discharged for disagreement, a new one is to be selected and summoned "as hereinbefore directed, within forty-eight hours, unless the parties agree upon a longer time, or consent that the justice may render judgment, on the evidence already before him, which, in such case, he may do."--Comp. L., § 5370.
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Siewek v. F. Joseph Lamb Co.
...completed and the price earned, the common counts were proper, and each contract in its entirety could be introduced as proof. McGraw v. Sturgeon, 29 Mich. 426;Nicol v. Fitch, 115 Mich. 15, 72 N. W. 988,69 Am. St. Rep. 542;Sharrar v. Nestle, 222 Mich. 538, 193 N. W. 239. If there was a firs......
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Swoboda v. Ward
...reversed with costs and a new trial ordered. Isaac Gibson for plaintiff in error. A general custom in business may be shown, McGraw v. Sturgeon, 29 Mich. 426; Dumont v. Kellogg, id., 420; Clark v. Cox, 32 204; Merick v. McNally, 26 Mich. 374; Power v. Kane, 5 Wis. 265; it need not be settle......
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Zakrzewski v. Great Northern Railway Company
... ... operated necessarily to reinstate it. We are impressed with ... the rule laid down in McGraw v. Sturgeon, 29 Mich ... 426, which is summarized in the syllabus of that case as ... ... "Where evidence which has been fully ... ...
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Zakrzewski v. Great N. Ry. Co.
...jury that they might consider this evidence, operated necessarily to reinstate it. We are impressed with the rule laid down in McGraw v. Sturgeon, 29 Mich. 426, which is summarized in the syllabus of that case as follows: ‘Where evidence which has been fully heard by the jury has been order......