Michigan Condensed Milk Co. v. Wilcox

Decision Date28 December 1889
Citation78 Mich. 431,44 N.W. 281
CourtMichigan Supreme Court
PartiesMICHIGAN CONDENSED MILK Co. v. WILCOX.

Error to circuit court, Ingham county.

Action by Michigan Condensed Milk Company against Harriet Wilcox. Error was assigned to the refusal of the court to excuse a juror for cause who had stated that it would take considerable evidence to remove the opinion which he had formed, but afterwards stated that he could try the case fairly. Error was also assigned to the excusal of a juror on the ground of conflicting duties as a justice of the peace. Judgment was given for defendant and plaintiff brings error.

R. A. Montgomery, for appellee.

J P. Lee, for appellant.

CHAMPLIN J.

The plaintiff, a corporation, commenced its action upon the case on the 6th day of July, 1888, to recover damages for fraud alleged to have been perpetrated upon the plaintiff by defendant in carrying out a milk contract entered into on the 29th day of March, 1888. The contract provided, among other things, that the defendant should sell to the plaintiff, and deliver at its milk receiving room in the city of Lansing all the milk produced at her dairy in the township of Delhi Ingham county, excepting the Saturday evening and Sunday morning's milk, and excepting also so much as might be necessary for the personal family use of defendant's family, the milk furnished to be paid for on the first Wednesday after the last Saturday of each month at the rate of $1 per 100 pounds from the 1st day of April to the 1st day of December, and $1.20 per 100 pounds from the 1st day of December to the 1st day of April. The defendant delivered milk to the plaintiff from the 2d day of April to the 7th day of June, when, having been notified that the company would no longer receive the milk from her dairy, she ceased sending milk to its factory. It was claimed by the plaintiff upon the trial that, soon after the defendant commenced delivering milk to the company, it was discovered by the company's milk inspector that the milk furnished by defendant was much below the average of normal milk in the fats contained, and that the milk had been, fraudulently either skimmed or adulterated by the addition of water, or both. The declaration contains two counts,-one under the statute, (How. St. � 2244,) the other a common-law count. The case was tried at the November term, and upon the application of plaintiff a new trial obtained. It was again tried at the March term, and a verdict returned for the defendant. The fraud alleged in both counts of the declaration is that "on the 2d day of April, A. D. 1888, and on divers other days and times between that day and the day of the commencement of this suit, the defendant, knowingly wrongfully, and fraudulently delivered to said plaintiff said milk, skimmed and adulterated by the addition of water...

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