People to Use of Holmes v. Sheehan

• Decision Date: 15 November 1898
• Citation: 77 N.W. 88,118 Mich. 539
• Court: Michigan Supreme Court
• Parties: PEOPLE, TO USE OF HOLMES ET AL., v. SHEEHAN ET AL.

77 N.W. 88

118 Mich. 539

PEOPLE, TO USE OF HOLMES ET AL., v. SHEEHAN ET AL.

Supreme Court of Michigan

November 15, 1898

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by the people, for the use of Frank B. Holmes and others against Thomas P. Sheehan and others. There was a judgment for plaintiffs, and both parties bring error. Modified.

Warner, Codd & Warner, for plaintiffs.

George H. Prentis, for defendants.

HOOKER J.

The findings of fact filed by the circuit judge state that the defendants Sheehan contracted with the city of Detroit to furnish materials and repave three streets, one of which was Randolph street. The other defendants were sureties upon the statutory bond given upon the Randolph street contract according to the provisions of Act No. 94 of the Public Acts of 1883, as amended by Act No. 45 of the Laws of 1885. The plaintiffs furnished materials, viz. curbstone, for all of these jobs, amounting in the aggregate to $1,182.18. Payments were made amounting to $674.83, leaving a balance of $507.35. All of the stone was charged upon one account, and the payments were so credited, the last credit being August 7th. On or about August 5th the plaintiffs had an interview with the Sheehans, in which they said that, owing to what they considered an unfair rejection of stone, they would furnish no more, unless the Sheehans would select such material at plaintiffs' yard, and when thus picked out, and delivered to Sheehan & Co., it should belong to them, and the plaintiffs would have nothing more to do with it. This was agreed to, and upon a secular day the Sheehans examined at the yard 629 feet 8 inches of curb, which was delivered to them upon Randolph street. The judge found that this became the property of the Sheehans, whether used or not, and that of this quantity of stone, 344 feet at 58 cents per foot worth $193.22, was delivered on Randolph street, at the request of the Sheehans, upon Sunday, August 8 1897. Of this quantity delivered upon Sunday, the Sheehans sold to other parties an amount worth $34.39; it being curb that was rejected by the inspectors. It is inferred that the remainder was used upon the street. The learned circuit judge found, as conclusions of law, that the defendants Archer and McDonald are not liable for the curb delivered on Sunday, amounting to $193.72, nor for the curb not used on Randolph street, amounting to $30.42; also, that the payments should be applied to the charges in the order of time; and he rendered judgment for the plaintiffs for $283.16, with interest at 6 per cent. from September 1, 1897. Exceptions were taken to the several findings of law. Both parties appealed.

Counsel for the plaintiffs contend that the selection of the stone passed the title from them to the Sheehans. If this is so, their liability is not affected by the fact that the stone was drawn Sunday. The finding shows that the material in question was furnished under the agreement of August 5th, which grew out of a refusal on their part to furnish any more material, unless the defendants Sheehan would select it at the yard. It is a general rule that, when one has agreed to sell and the other to buy a specific and designated article, the title passes to the purchaser at once, unless the terms of the contract indicate the intention to have been otherwise, and delivery is not essential to the passing of title as between the parties and their privies. This rule is supported by innumerable cases, a long list of which will be found in 21 Am. & Eng. Enc. Law, 476, note 1,-among them, three of our own cases, viz.: Davis v. Ransom, 4 Mich. 238; Whitcomb v. Whitney, 24 Mich. 486; Byles v. Colier, 54 Mich. 1, 19 N.W. 565. See, also, Lingham v. Eggleston, 27 Mich. 324; Blodgett v. Hovey, 91 Mich. 574, 52 N.W. 149; Kuppenheimer v. Wertheimer, 107 Mich. 79, 64 N.W. 952.

Where there is no manifestation of intention, the law presumes a sale, and the immediate transfer of title, if the specific thing is agreed on, and it is ready for immediate delivery. See 21 Am. & Eng....