Talbot Paving Co. v. Gorman

• Decision Date: 28 December 1894
• Citation: 61 N.W. 655,103 Mich. 403
• Court: Michigan Supreme Court
• Parties: TALBOT PAVING CO. v. GORMAN.

61 N.W. 655

103 Mich. 403

TALBOT PAVING CO. v. GORMAN.

Supreme Court of Michigan

December 28, 1894

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by the Talbot Paving Company against Charles A. Gorman. Judgment for defendant, and plaintiff brings error. Affirmed.

Brennan, Donnelly & Van De Mark, for appellant cited the following cases on the proposition that the vendee of goods sold with a warranty may, without returning the goods, recover damages for breach of warranty Doane v. Dunham, 65 Ill. 512; Polhemus v Heiman, 45 Cal. 573; Vincent v. Leland, 100 Mass. 432; Lewis v. Rountree, 78 N.C. 323; Kellogg v. Denslow, 14 Conn. 411; Hull v Belknap, 37 Mich. 179.

Walter Barlow, for appellee.

HOOKER J.

The plaintiff contracted with the defendant for the delivery f. o. b., Detroit, of a quantity of Medina paving stone, the same to answer the requirements of Detroit specifications, of which defendant had a copy. The contract was made by correspondence. At request of defendant, the plaintiff advanced $2,500 upon the contract, and afterwards made other payments, leaving a balance of $1,338.47. The requisite amount of stone was shipped to Detroit, where it was unloaded, and used by the plaintiff upon its paving jobs, upon which it was at work. It is claimed upon its behalf that the stone did not conform to the specifications rendering it necessary to put work upon them, of which it seasonably informed the defendant, with the suggestion that he might send men to do such work if he chose, and that he did send men who did some such work. This action was brought by the purchaser, who claimed a balance his due of $684.49 for such work done by it and for some broken stone. The defendant claimed the amount of $1,338.47. The defendant recovered $1,432, which probably included some interest. The court instructed the jury that: "There can be no question, with reference to this executory contract, that the acceptance by the Talbots in the first instance precluded their recouping, as we may say, for the character of the stone, because it did not come up to the Detroit specifications. In other words, they had the opportunity to examine the stone as it was delivered on the cars in this city, and, unless there was something further than that,-unless there was some other promise on the part of the defendant,-then the defendant would be entitled to a verdict for the amount claimed, viz. one thousand three hundred and thirty-eight dollars and forty-seven cents, with interest from November 5, 1892." The court instructed the jury further that if they should find that the defendant came to Detroit, and agreed with the plaintiff to pay for the work mentioned, there was a moral consideration that would support the promise, and the amount should be allowed to the plaintiff.

The principal question in this case is whether the plaintiff, by receiving and using the stone, accepted them as a full compliance with the contract, or whether he had a right to take them, and recover his damages by way of recoupment or action growing out of their failure to equal the specifications. There are cases which hold that an acceptance of goods precludes such recovery, and there are others which hold the contrary. On principle, the distinguishing feature seems to be a warranty. If the sale is without a warranty and affords an opportunity for ascertaining whether the goods conform to the description, the doctrine of caveat emptor applies, and an acceptance cuts off all rights of recovery. The vendee should decline to receive the goods, and sue for a breach of the contract. If, on the other hand, the sale is with a warranty, the vendee may lawfully receive the goods, and recover or recoup damages upon the warranty, which is held to be a collateral undertaking. It is believed that the principle is generally recognized. In addition to cases cited by counsel, see Pierson v. Crooks, 115 N.Y. 539, 22 N.E. 349. It seems to be in the present case; counsel for appellant insisting that an implied warranty exists, while, upon the other hand, it is said that the provision in relation to the specifications is a condition precedent merely. The contract was an executory contract, and may fairly be said to have contemplated the manufacture of the curbing from a specified stone, in accordance with specified dimensions and workmanship. If the agreement to furnish such stone of the specified dimensions was a warranty at all, it is difficult to understand why it was not an express warranty, and, if it was such, there can be no implied warranty that the stone should conform to the specifications. Indeed, this does not seem to be claimed. These things were a necessary part of the description of the commodity, and nothing more, unless the face of the contract justifies the conclusion that it was intended as a warranty. Neither party asserts this, and so we turn to the question of implied warranty. The exact point made by plaintiff appears...