Potter v. Lee

• Decision Date: 22 December 1892
• Citation: 94 Mich. 140,53 N.W. 1047
• Court: Michigan Supreme Court
• Parties: POTTER et al. v. LEE.

53 N.W. 1047

94 Mich. 140

POTTER et al. v. LEE.

Supreme Court of Michigan

December 22, 1892

Error to circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

Action by George N. Potter and others, copartners, as the Potterfield Cheese Factory, against Gilbert W. Lee, to recover the value of cheese sold defendant. From a judgment for plaintiffs, defendant appeals. Affirmed.

Charles W. Casgrain and Charles S McDonald, for appellant.

Philip T. Van Zile and Frank E. Robson, for appellees.

LONG J.

Plaintiffs brought assumpsit in the Wayne circuit court on the common counts. In their bill of particulars they claimed for the price and value of 169 cheeses, weighing 7,253 pounds, at 7 1/2 cents per pound, amounting to $543.98. Defendant gave notice under his plea of the general issue that the plaintiffs falsely and fraudulently represented that the cheeses were good and merchantable, were not strong, and would not crumble when cut; that between 18 and 20 only were made during the month of July, and the balance were made during August of that year, and that the entire was equal, if not superior, to the samples which were exhibited; that he (the defendant) relied upon such warranty in making the purchase; that the same were not equal to the samples, and that such representations were false, and the cheeses were of an inferior quality; were made from inferior ingredients were strong, and would crumble when cut; were unmerchantable and of no value; and that he sustained loss thereon, and to his business, etc., which he would recoup on the trial. The case was tried before a jury, and the plaintiffs had verdict and judgment for $585.66. Defendant brings error. On the trial the plaintiffs produced as a witness John Potter, who was the agent of the plaintiffs in making the sale to the defendant. His version of the sale and what the contract was is that on the 24th day of September, 1890, he called upon the defendant at his place of business in Detroit, and endeavored to sell him a quantity of cheese, which he had at the Detroit, Grand Haven & Milwaukee depot in Detroit. He did not sell them on the first visit to defendant. He called upon others, and on the next day made a sale to the defendant. He took 15 cheeses as samples to defendant's store. Three or four were taken into the store, and examined by the defendant with a trier. Defendant asked what he wanted for them, and he said 8 cents. Defendant would not pay that price, and offered 7 1/2 cents, and the bargain was closed at that price. The cheeses were each marked plainly on the outside with the date they were made. Mr. Potter testified that no representations were made as to the cheeses being good and marketable, or that those at the depot were as good as the samples, but that he stated that they were made in July and August. He also testified that in selecting the samples he took some of July and some of August make, and without an effort to select the best. The defendant testified that he tried three of the cheeses with a trier, and found them good. He asked how many of the whole lot were made in July, and Potter answered 15 or 20, and the rest in August. After examining the three, he asked Potter if the cheese would crumble when cut; if they would, he would not give a cent per pound. Potter said other merchants at Potterfield had used them with perfect satisfaction. That he then said to Potter: "'If that lot of cheese is as you represent it, and will not crumble, and are as good as these three samples, I will take it all, and pay you seven and a half cents per pound for it.' Potter said he would take that price, and wanted a check for the amount. I told him 'That may be all right; we have plenty of money to pay it, but we don't pay quite as prompt as that. You are a stranger to me, and I have seen only ten boxes of these cheese, and I don't know what is in the car. If in the course of ten days we find this cheese as you represent it, we will pay for them, taking one per cent., which is customary.' Mr. Potter then left for home." The last part of this arrangement is substantially agreed to by Mr. Potter. He says that defendant wanted 1 per cent. off, or take 30 days to pay it in, and he gave him the 30-days time. Nothing has ever been paid. Defendant took the cheeses from the depot, sold some, and says that in less than 10 days parties to whom he shipped some of them refused to pay, and wrote letters rejecting them. He introduced testimony tending to show that he attempted to make sales; that the cheeses would crumble when cut, and come back upon his hands, as they were not equal to the sample; and that it had injured his business to a great extent. He testified further that he wrote a letter to the plaintiffs on October 21st, which was the first notification he gave them of the quality or condition of the cheeses, and...