Savercool v. Farwell

• Decision Date: 07 October 1868
• Court: Michigan Supreme Court
• Parties: Samuel Savercool v. Jesse H. Farwell

17 Mich. 308

Samuel Savercool v. Jesse H. Farwell

Supreme Court of Michigan

October 7, 1868

Heard July 13, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of assumpsit, to recover damages for a breach of contract to deliver lumber.

The declaration set forth two different contracts. The common counts were also added.

The defendant pleaded the general issue, and gave notice of recoupment.

On the trial the plaintiff offered in evidence a contract bearing date January 9, 1867, made and executed by S. Savercool and J. H. Farwell, by the terms of which said Savercool agreed to deliver to said Farwell, on the Michigan Central railroad dock, in Detroit, one hundred thousand feet of boards, twelve and fourteen feet long, one inch thick, and thirteen inches wide; one hundred thousand feet of boards twelve and fourteen feet long, five-eighths of an inch thick, and seven inches wide--all to be edged and entirely clean, and piled in cross-piles as fast as sawed. One hundred thousand feet to be delivered as above by the 15th of May, 1867, and the balance of one hundred thousand by the 15th of June following.

Said Farwell was to pay for said lumber as follows: $ 20 per one thousand feet for the inch lumber, and $ 16 per thousand feet for the five-eighths.

Payment to be made as follows:

Eighty per cent on each lot of fifty thousand, and the balance on the delivery of the whole amount, as above stated.

Said lumber to be inspected by W. E. Warriner, or some competent inspector whom he might choose.

Plaintiff then offered in evidence, under objection, another contract dated April 9, 1867, by the terms of which said Savercool agreed to deliver to said Farwell the following lumber at the dock of the Michigan Central railroad company: Fifty thousand feet of whitewood board, subject to inspection, and also that said Farwell should receive said lumber, and pay said Savercool the sum of $ 25 per thousand feet, and that this, and the lumber mentioned in the previous contract, was to be inspected on the dock at the place of delivery; at least one hundred and fifty thousand feet of the lumber mentioned in the previous contract was to be delivered by May 1, 1867.

Plaintiff's counsel then offered evidence tending to show the amount of lumber received by plaintiff under said contract, the sums of money advanced to defendant by plaintiff, and the damage to plaintiff by the non-delivery of a portion thereof under the contract.

On the cross-examination of said plaintiff, he testified, tending to show that there was not an agreement subsequent to that of January 9th; that said lumber should be inspected at defendant's mill, in lots of fifty thousand; that he did not go to defendant's mill and inspect part of said lumber, and did not, at that time, pass upon it, and say it filled the contract.

Counsel for defendant then asked the plaintiff:

Question. In looking over this lumber at defendant's mill, did you not tell Mr. Huntress that it was all right, and would fill the contract (referring to the one-inch sycamore)? To which question counsel for plaintiff objected as irrelevant. The court sustained the objection, and counsel for defendant then and there excepted.

Counsel for plaintiff then re-examined said plaintiff and offered evidence tending to show that defendant agreed with plaintiff, that one Hough should inspect said lumber, in the place of Warriner, who could not attend to it, and that Hough did inspect the same, under a written order from the defendant, and rejected a large amount thereof. Counsel for defendant objected, because the said evidence would tend to prove another and different contract from that set up in the plaintiff's declaration; which objection was overruled, and said evidence admitted. Defendant excepted.

Counsel for plaintiff, as part of his testimony to prove damages, called Samuel Walker, who, being duly sworn, testified that he was engaged in the lumber business, and had been for a number of years; that he lived and did business in Wayne, Michigan, and that he knew the market value of whitewood lumber of the description in contract "B", on September 1, 1868; and that the market value was $ 30 per thousand. On cross-examination, witness stated that he did not know the market value at Detroit, but that $ 30 was the market value in Wayne, and that it would be higher in Detroit.

Plaintiff then rested, and counsel for defendant called Joel S. Huntress, who, being sworn, testified that he had sawed and examined, at the defendant's mill, the quality of the one-inch sycamore, in said contracts mentioned. Counsel for defendant then offered evidence by said witness, tending to show that there was an agreement by parol, prior to April 9, 1867, between plaintiff and defendant; that the lumber mentioned in the contract of January 9, should be inspected at defendant's mill; that plaintiff did inspect a portion thereof at that place prior to said April 9, and pronounced it correct.

Counsel for plaintiff objected on the ground of irrelevancy. The objection was sustained, and the defendant excepted.

Counsel for defendant then offered evidence tending to show that defendant had sent into Detroit, and delivered on the dock according to contract, the whole quantity of sycamore lumber within the time prescribed by the contract, and of quality and description in all respects as called for by said contracts; to which counsel for the plaintiff objected on the ground that the inspection of the inspector was binding and conclusive on the parties in the absence of fraud, which objection was sustained, and defendant excepted.

The defendant then introduced further evidence tending to show that defendant had not received or accepted any of the lumber which was rejected by the inspectors, or any of that which was delivered at the dock and not inspected. There was also evidence in the case tending to show that the lumber was brought in and unloaded under plaintiff's orders; that the plaintiff declined to inspect a quantity of the one-inch sycamore lumber, because there was thin lumber on top of it; and defendant's counsel offered evidence tending to show the amount of said lumber which was not inspected, and that it was in all respects up to the requirements, as to quality and dimensions, of the contract; to which plaintiff's counsel objected, and the court sustained the objection, and defendant excepted.

Whereupon, the testimony and arguments of counsel being closed, the defendant requested the court to charge the jury:

1. "That the written contract of April 9 changes the payments and mode of delivery from the manner prescribed in the contract of January 9, and alleged in the plaintiff's declaration, and that, therefore, the jury must find for the defendant," which the court refused, and the defendant excepted thereto.

The defendant also requested the court to charge the jury,

2. "That the contract for the sycamore lumber, as proved by the plaintiff, was as to the mode of inspection, a different one from that set forth in plaintiff's declaration and there can be no recovery under the declaration in this action by the plaintiff;" which the court refused, and the defendant excepted thereto.

The defendant also requested the court to charge the jury,

3. "If the jury find under the charge of the court, that the contract for the sycamore lumber, as proved, is a different contract from the one set up in the plaintiff's declaration, then the plaintiff can not recover under his declaration, and their verdict must be for the defendant;" which the court refused, and the defendant excepted thereto.

The defendant also requested the court to charge the jury,

4. "If the jury find that one Walker did not know the market value, in Detroit, of whitewood, they must reject his testimony as to what such value was," which the court refused, and the defendant excepted thereto.

But the court charged that the jury were at liberty to consider the testimony of Mr. Walker, inasmuch as he testified to the value of lumber at Wayne, and that it was higher in Detroit; to which the defendant also excepted.

The jury returned a verdict for said plaintiff for damages in the sum of $ 1,500.

Judgment reversed, with costs, to plaintiff in error, and a new trial awarded.

D. B. & H. M. Duffield, for plaintiffs in error:

1. An agreement to pay on the happening of a certain event is rescinded by the mutual agreement of both parties that such event shall not happen.

Where no agreement is made as to the time when the price of goods is payable, it is payable on the delivery of the goods: 1 Pars. on Cont. (5th ed.), p. 535.

And there being no agreement as to the amount to be paid, on the delivery of the goods, the whole was then due and payable.

The second contract, therefore, provided for an entirely different mode of payment, both in time and amount, from that alleged in the plaintiff's declaration.

But the payment by the defendant in error, or more correctly his agreement to pay, is the consideration of defendant's promise.

The statement of the mode of payment is therefore descriptive, and must be proved literally as laid.

Any variance is fatal: 1 Greenlf. Ev., § 68; 3 Wend. 374; 7 Johns. 322; 36 Miss. 458; 27 Ala. 542; 1 Mich. 487; 13 Id. 113.

2. The plaintiff had sworn, on his cross-examination, that there was no agreement subsequent to that of January 9th, that the lumber mentioned in the January 9th contract should be inspected at the mill of plaintiff in error; that he did not go to said mill and inspect part of said lumber; and did not at that time pass upon...