Pandaleon v. Brecker

• Decision Date: 02 June 1924
• Docket Number: No. 28.,28.
• Citation: 227 Mich. 297,198 N.W. 953
• Parties: PANDALEON et al. v. BRECKER.
• Court: Michigan Supreme Court

227 Mich. 297

198 N.W. 953

PANDALEON et al.

v.BRECKER.

No. 28.

Supreme Court of Michigan.

June 2, 1924.

Error to Circuit Court, Wayne County; Adolph F. Marschner, Judge.

Action by Costa A. Pandaleon and others, doing business as Pandaleon Bros., against Jack Brecker. Judgment for plaintiffs, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Joseph L. Ruby, of Detroit (Leopold D. Mayer, of Detroit, of counsel), for appellant.

Friedman, Meyers & Keys, of Detroit, for appellees.

FELLOWS, J.

Defendant signed and delivered to plaintiffs' agent the following writing:

‘Chicago, Illinois, August 20, 1920.

‘Sold to Mr. Jack Brecker, Detroit, Mich., through our agents-Messrs. Ward L. Andrus & Co. of Detroit, Mich. Payment terms: 10 days, less 1 per cent., against documents. Shipment from Smyrna in pool car in October. Weights guaranteed within the usual 1 per cent. 250 25 lb. boxes black Smyrna raisins No. 3, at 21 cents per pound f. o. b. Detroit. Duty paid.

[Signed] Jack Brecker.'

Parol testimony was received without objection to the effect that a duplicate of this paper signed by plaintiffs was at the same time delivered to defendant. Some time later defendant attempted to cancel the contract, but his cancellation was not accepted by plaintiffs, although they did attempt unsuccessfully to sell the contract to some one else after they received defendant's letter. The raisins arrived in Detroit and were tendered to defendant, who refused to accept them. Plaintiffs' testimony tended to show that there was at that time no market for this brand of raisins in Detroit, and after making repeated attempts to sell them there they were shipped to Chicago and there sold for 15 cents a pound, that being the highest obtainable price and the highest market price for this brand of raisins. Defendant controverted much of plaintiffs' testimony. Judgment passed for plaintiffs in both the justice and circuit courts, and the case is here reviewed under numerous assignments of error.

[1][2] No question of the statute of frauds is raised, but it is insisted by defendant's counsel that the two papers above referred to constituted a proposal and acceptance, and that, inasmuch as the paper signed by plaintiffs was not introduced in evidence there is no proof of acceptance and no proof of a binding contract. The rule is well recognized that the best evidence should be produced; but this rule was not invoked in the court below, Parol evidence showing that the paper signed by plaintiffs and delivered to defendant was a copy of the one signed by him was received without objection. Under these circumstances it is too late to invoke the rule for the first time in this court. The paper involved was used in the court below on both the examination and cross-examination of witnesses, although it was not formally introduced in evidence. Defendant was at liberty in the court below to object to receiving the parol evidence, or if he saw fit to refute it if he could by introducing the exhibit. He did neither. He cannot now complain.

[3] Defendant's counsel insist that if plaintiffs are entitled to recover at all the measure of their recovery is fixed by subdivision (4) of section 11895, C. L. 1915, and, as the proofs do not establish their measure of damages under this provision of the Uniform Sales...