Platt v. Broderick
| Decision Date | 08 June 1888 |
| Court | Michigan Supreme Court |
| Parties | PLATT v. BRODERICK. |
Error to circuit court, Berrien county; ANDREW J. SMITH, Judge.
Assumpsit by George W. Platt, assignee of the Walter A. Wood Mowing & Reaping Machine Company, against Edward Broderick, for the price and value of a mowing-machine. This action was brought in a justice's court, where the defendant had judgment for costs. The plaintiff appealed to the circuit court, where he recovered judgment for $65 before a jury. Defendant assigns error.
The machine was not injured. There is nothing to show that plaintiff's objection to receive the machine was because defendant set it up without waiting for the agent. Plaintiff does not seek to recover on the ground the judge put the case on.
Plaintiff's agent was to set up the machine, and work it until it worked satisfactorily. The setting up and working were one entire condition; and, when defendant set up the mower, he put it out of the power of plaintiff to perform the conditions, and the sale became unconditional and absolute. The condition was waived. Smith v. Lynes, 5 N.Y. 41; Hennequin v. Sands, 25 Wend. 640; Deyoe v. Jamison, 33 Mich. 94; Comstock v. Sanger, 51 Mich. 497 16 N.W. 872. MORSE, J.
The plaintiff declared against the defendant in justice's court for the price and value of a mowing-machine, $65, sold by him, as agent of the Walter A. Wood Mowing & Reaping Machine Company, to said defendant, which said claim or account of $65 was assigned by said machine company to him before the commencement of this suit. The defendant had judgment in the justice's court for costs. The plaintiff appealed to the circuit court for the county of Berrien, in which court, before a jury, the plaintiff recovered judgment for $65. The plaintiff claimed, upon the trial, that the machine was sold to the defendant in the summer of 1886. The terms of sale were agreed upon on a certain Saturday in the month of July. Broderick was to take the machine home that day. An agent of the machine company, one Knearl, was to go out to Broderick's place on the following Monday, and set the machine up, and stay until it worked satisfactorily. If it did not suit the defendant, he was to bring it back Monday, and receive pay for bringing it in. If it worked all right to his satisfaction, Broderick was to keep the machine and pay $65 for it,-one-half October, 1886, and the balance of October, 1887, with interest from October, 1886. Under this arrangement, defendant took the machine home with him Monday morning. Knearl testifies he went out to Broderick's farm to fulfill his part of the agreement. He found that defendant had set up the machine, and was at work with it. He made some changes in the setting of the machine. It was tried in all kinds of grass growing on defendant's place, and worked well. Knearl stayed about three hours, when Broderick told him he "liked the machine first rate," and he need not stay any longer. He then went back to town. A few days after, the defendant brought the machine back. The plaintiff refused to receive it, and defendant unloaded it in the yard of Mrs. Downey about 20 feet from plaintiff's premises. The defendant's version of the transaction was that the price of the machine was agreed upon at $60, with a year's time, without interest. If the machine suited him, he was to take it out to his farm, and try it until he was satisfied. There was no time mentioned when he should bring it back if he did not like it, nor was there any limit as to time of trial. Did not tell Knearl that he was satisfied with the machine, or anything of the kind. The machine did not do good work. Did not suit him, and he returned it on Thursday. Did not use it except on Monday, when he mowed about three acres. The testimony shows that some time in October, 1886, the...
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