Murphy v. Gifford, 49
| Decision Date | 06 October 1924 |
| Docket Number | No. 49,January,49 |
| Citation | 200 N.W. 263,228 Mich. 287 |
| Parties | MURPHY v. GIFFORD. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Eaton County; Clement Smith, Judge.
Action by Anna M. Murphy against R. D. Gifford. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.
Argued before CLARK, C. J., and BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Rosslyn L. Sowers, of Charlotte, for appellant.
Peters & Marshall, of Charlotte, for appellee.
Plaintiff, as assignee, brought this action in the Eaton county circuit court to recover from defendant Gifford an unpaid balance claimed due on a typesetting machine sold him by the American Typograph Company, of Detroit, Mich., under a contract with deferred payments.
Plaintiff declared in assumpsit for the balance due on the contract set out in full, and defendant pleaded the general issue with a lengthy notice of special defense, the material substance of which, as amended, is that he was induced to enter into the contract by fraudulent and false representations, ‘that said machine was suitable for jobwork, and that said machine would do all kinds and grades of work that any typesetting or slug-casting machine would do,’ and that in his unsuccessful efforts to use said machine he suffered serious losses in time and money, for which damages were claimed by way of set-off and recoupment.
The case was tried before a jury, resulting in a verdict and judgment in defendant's favor under his counterclaim of recoupment, amounting to $299.97. Plaintiff's counsel moved the court to set aside the verdict and grant a new trial, which was denied, and the case was then removed to this court for review on assigned errors. Those especially urged here, as stated in the brief of plaintiff's counsel, are directed to the charge of the court and refusal to give certain of defendant's requests.
The American Typograph Company manufactured and sold to the trade a slug-casting, one-face typesetting machine called the Improved Typograph. Gifford printed and published a newspaper called the Gazette at the village of Eaton Rapids, Mich., and on September 1, 1913, wrote the typograph company as follows:
‘Gentlemen: Please inform me what the Typograph costs, also best possible terms you give. Am thinking of buying some kind of a machine.
‘Very truly,
R. D. Gifford.'
In reply the company sent him, on September 2, 1913, some circular matter relating to the typograph, copies of some papers from offices where it was in use showing different kinds of type, and wrote him a letter with statement of price, terms, etc., saying in part:
etc.
On September 8, 1913, Gifford was in Detroit, and called at the typograph company's place of business, saw a machine in operation and slugs cast, discussed it with the representative of the company, and bought the one in question here at the regular price of $1,100 under a written contract of that date signed by both parties, the terms of which, so far as material here, being on his part a payment of $200 down and the balance in monthly payments of $20, with interest at 5 per cent. per annum on unpaid balances computed half yearly, the vendor on its part agreeing to supply him all repair parts at net list prices, protect him against infringement of patents, and guaranteeing that ‘the machine shall be free from defect in both material and construction, and will replace, free of charge to the vendee, any part or parts (matrices and spacers excepted), not so proving for one year from date of installation of the machine, after the alleged defective part or parts have been examined by the vendor or its agent.’
On the back of the contract, under the heading, ‘Guarantee and Conditions to the Within Agreement,’ were set out conditions as to installation, and various other details irrelevant in this inquiry, with a guaranty by the vendor that ‘the plant and fixtures shall be of standard material, well finished, and of good, merchantable quality,’ and a requirement that the vendee keep the property insured to protect the vendor's unpaid balances.
The machine was shipped to Gifford September 11, 1913, and on notice from him of its receipt the company sent an experienced man to install it and give instructions in its care and operation. He installed it, instructed Gifford in its use and mechanism, including how to take it down and put it together again. He remained until it had been in operation two full days, and when he left on September 18, 1913, received the following certificate from him, addressed to the typograph company:
‘This is to certify that Typograph No. 734 has been properly installed and is giving satisfaction.
R. D. Gifford.'
On September 23, 1913, Gifford wrote the company saying he had been using the machine, and found it ‘all right in every way,’ so far as he could see, and was ‘very much pleased with it,’ except that it did not line very well, and he thought a heavier face, printed sample of which he inclosed, would do better.
On September 30, 1913, the company replied, saying the last week's issue of his Review looked well, and they thought he would be pleased with the No. 11 face he was using after he had seen it a few weeks, but, if he decided he wanted the face he expressed a preference for, they would make the exchange.
On October 3, 1913, he wrote, inclosing check for $20 to meet payment due October 1st, saying:
The face he asked for was sent him, and, after trying it for a time, he wrote the company, saying he did not like it as well as the first, and named a third, No. 15, which he said he always liked best, requesting it be sent him, offering to return the others and defray any expense of the exchange. The third face was sent him as requested. In the correspondence on this subject he made no complaint of the machine, although he admitted, ‘At that time we had tried it out on jobwork,’ and said, ‘It seemed to be a matter with me as to which kind of face I wanted, and I kept trying to see if one suited me better.’
On December 12, 1913, he wrote the company:
‘Am getting along very well with the machine although I find it impossible to get surface even enough on slug to do any kind of jobwork, with the exception of on soft surface paper. Possibly you could suggest some remedy for this.
‘Very truly,
R. D. Gifford.'
On December 13, 1913, the company replied:
-giving detailed instructions as to proper method and care in casting lines.
On February 20, 1914, he next wrote the company inclosing $20 to apply on machine, of which he made no complaint, explaining business had been so poor he could not remit sooner, saying in conclusion, ‘Will try and make up what I am back on payments in the near future.’
On April 17, 1914, he wrote the company as follows:
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