Schantz v. Mott

• Decision Date: 04 June 1928
• Docket Number: No. 65.,65.
• Citation: 242 Mich. 642,219 N.W. 634
• Parties: SCHANTZ v. MOTT et al.
• Court: Michigan Supreme Court

242 Mich. 642

219 N.W. 634

SCHANTZ

v.MOTT et al.

No. 65.

Supreme Court of Michigan.

June 4, 1928.

Error to Circuit Court, Lenawee County; Jacob N. Sampson, Judge.

Action by Arthur Schantz against Judson L. Mott and another, copartners trading as Merchants' Advertising Company, who filed a plea in recoupment. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before the Entire Bench.

Baldwin & Alexander, of Adrian, for appellants.

James H. Cornelius and Charles L. Robertson, both of Adrian, for appellee.

WIEST, J.

An agent of plaintiff called upon defendants in the city of Adrian, and was given the following order:

‘From Merchants' Advertising Company,’ 315 West Maumee Street, Adrian, Michigan. About 12,000 feet 7-in. K. D. S4S to 1 3/4x6 3/4. 4,000 feet 1x3 K. D. S4S to about 2 3/4x3/4.'

This order was sent by the agent to the home office of plaintiff at Jackson, Ala., and from there notice of acceptance was sent to defendants. The lumber was shipped from Alabama to Adrian, Mich., and, upon arrival of the car at Adrian, defendants took out some of the lumber, and, in working it up, found that it was not sufficiently kiln-dried for their purposes, and notified plaintiff of their rejection of the shipment. The railroad agent also notified plaintiff of the rejection by defendants, and was directed by plaintiff to rebill the car to parties at Dayton, Ohio. Later defendants notified the railroad agent that they would accept the car, and plaintiff was so informed and consented. After taking the lumber, defendants refused to accept a draft for the shipment, and laid claim to damages. This suit was brought by the seller to recover the agreed price of the shipment. Defendants, under plea of the general issue, gave notice of damages sustained by them because the lumber was not sufficiently kilndried, and asked to have the same allowed in recoupment. At the close of the proofs, the circuit judge, on motion of counsel for plaintiff, directed a verdict in favor of plaintiff for the amount of his claim. Defendants review by writ of error and claim the court was in error in so directing the verdict.

The order for the lumber was given in Michigan, to be sent to Alabama for acceptance, and, upon acceptance there, was an Alabama contract. Tyng & Co. v. Converse, 180 Mich. 195, 146 N. W. 629. When the car arrived at Adrian, and the lumber was inspected and found unfit for use, defendants were, to say the lease, put to an election to either reject or accept the shipment. They first rejected and then accepted, and, as their acceptance was unconditional, they are liable for the agreed price. At the time of acceptance defendants were aware of the condition of the lumber and could not take it unconditionally, and, when sued, set up, by way of recoupment, a claimed breach of the contract and recover damages occasioned thereby. Plaintiff's agent, who took the order, was aware of the fact that the lumber was to be used in making clock cases and had to be dry. From this defendants claim there arose in implied warranty that the lumber would be very dry, and therefore suitable for clock cases. The lumber was kiln-dried, but it seems that the usual kiln-drying is not sufficient for defendants' purposes. The order called for kilndried lumber,...