Simonds Mfg. Co. v. Riddle

• Decision Date: 25 January 1889
• Citation: 73 Mich. 497,41 N.W. 675
• Parties: SIMONDS MANUF'G CO. v. RIDDLE.
• Court: Michigan Supreme Court

41 N.W. 675

73 Mich. 497

SIMONDS MANUF'G CO. v. RIDDLE.

Supreme Court of Michigan

January 25, 1889

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

Replevin by the Simonds Manufacturing Company against Nelson K Riddle. On the trial Charles Smith testified as follows " Question. Now, was any agreement ever made between Osmun & Dawson,-do you know of any agreement that you ever made with Mr. Osmun or Dawson? Did you ever meet them? Answer. I have; yes, sir. From memory, I think it was in June of last year,-at the time I made the written agreement with them. I met them once or twice before that; in the early spring, probably. We were very anxious to have an agent in Detroit to handle our furnaces. We were pretty comfortably fixed in every city of the west except Detroit and a gentleman by the name of Candler had taken the agency but he was in another line of business, and he did not do much. Mr. Wineman suggested Osmun & Dawson, and I went up and talked to them, and showed them our furnace, and they thought they would like to handle a furnace. I went on east attending to my business, and there remained. In June- I forget whether I was in there once or twice before, but anyway I was there again in June. I again told them what we should do, and they looked upon the proposition favorably, and I made the proposition in this way: I told them we should send them goods; I wanted to make this a distributing point. Q. Wait a minute, did you make any proposition? A. Yes, sir; I was just coming to that,-I wanted to make this a distributing point." Defendant's counsel objected to this as entirely incompetent. If there is a written agreement, the preliminary talk is irrelevant, and should be excluded. " Court. I cannot tell up to the time. Now, when you use the word 'goods,' tell us what you mean. Defendant's Counsel. Do you overrule my objection? I object as incompetent, irrelevant, and immaterial, for the reason that he has testified that there was a written agreement, and, if so, all preliminary conversation is immaterial, and is merged in the written agreement. Court. How do you know it is merged? Defendant's Counsel. He just testified that he did. Court. He testified that he had a written agreement. Defendant's Counsel. How he came into it, or why, is of no consequence in this case. Court. Take your exception, and proceed. Defendant's counsel thereupon excepted. Witness. I made two agreements.-a written agreement and a verbal agreement. The verbal agreement was written." Defendant's counsel again objected. " Mr. Cowles. On what ground? Mr. Chapman. That a written agreement and verbal agreement will not stand together. Mr. Cowles. We have not the written agreement in our possession. My brother, without a doubt, has an agreement of some kind or other. We propose to show there was a written agreement, written out. Perhaps my brother will produce it on cross-examination. Court. Proceed; take your exception." The witness detailed his recollection of its contents, and afterwards the agreement was introduced.

The court in charging the jury said, inter alia: "Now, gentlemen, I will not undertake to recall to you all the evidence in this case, because I may not do so in a manner satisfactory to you. I, being human, like yourselves might misstate some things which you are as well qualified to remember as I. Some of you have been in business a great many years, and are much older than I am, and have had the experience which I lack, and that is a business experience. However, I will recall to your mind, for I think it is my duty, that at the time plaintiff's agent, Mr. Smith, was sworn, I asked him if there was a verbal or written contract, to which he replied that there was both a verbal and written contract. I asked him, further, where the written contract was, and he said that he had seen it in the hands of the defendant, Nelson K. Riddle; that he was endeavoring to get it, but was unable to do so, and did not have it. I then told him to proceed, and to give us the verbal contract that existed between him and the defendant, and he testified, among other things, as follows: 'I told them I would send them a line of our furnaces, so that they could see our goods, and they could sell, except three of them to keep on the floor as samples, and not sell them at all, but with the others they could sell; and told them they could sell them, to give everybody that bought them until the coldest weather in January to test them thoroughly, and, whenever these reliable parties they had sold to said they did the work that I had told them they would do, then they would owe us for the money.' Now, gentlemen, I recall that. That is a part of this contract up to that time, and until Smith had given his evidence, and on the part of the cross-examination, that...