text:
    B. F. STURTEVANT CO. v. ADOLPH LEITELT IRON WORKS.
    Corporations — Foreign Corporations — Licenses — Interstate Commerce.
    In an action by an unlicensed foreign corporation to recover the purchase price of'a ventilating system, which was to be installed by the seller, under the agreement, evidence held, insufficient to establish that the apparatus had such intrinsic or peculiar quality or inherent complexity as rendered it necessary that the manufacturer agree to install it in order to effect sales generally, so that the contract was not within the exception of section 8, of Act No. SIO, Pub. Acts 1907, as amended (2 Comp. Laws 1915, § 9070), that the provisions of the act providing as to licensing of foreign corporations as a prerequisite to doing business within the State should not be construed as prohibiting any sale of goods or merchandise which would be protected as interstate commerce.
    Error to Kent; Brown, J.
    Submitted April 9, 1917.
    (Docket No. 76.)
    Decided May 31, 1917.
    Assumpsit by the B. F. Sturtevant Company against the Adolph Leitelt Iron Works for the purchase price of a school ventilating system. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Henrij B. Graves, for appellant.

      H. Monroe Dunham, for appellee.
    On May 8, 1914, plaintiff entered into a contract with defendant for the sale of a ventilating system to be installed in the South High School in the city of Grand Rapids. This contract was breached by the defendant, and plaintiff brought its action to recover damages arising out of said breach. Defendant filed a plea of the general issue, giving notice under said plea that it would insist in its defenses that the plaintiff, at the time said contract was entered into, had not complied with the requirements of the statute of the State of Michigan permitting and authorizing plaintiff to carry on business within the State. It is conceded upon the record that plaintiff was never licensed to do business in Michigan under Act No. 310, Pub. Acts 1907, as amended by Act No. 3, Extra Session 1907, and Act No. 266, Pub. Acts 1911, and Act No. 277, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 9063-9072). The case was tried by the court without a jury. At the conclusion of the plaintiff’s case a motion was made on behalf of the defendant for a directed verdict, upon the sole ground that .plaintiff, a foreign corporation, at the time the contract was made was engaged in intrastate commerce without being legally licensed under the laws of the State of Michigan in that behalf. This motion was granted, and the court made the following findings of fact and law:
    “Findings op Fact and Law.
    (“Filed July 25,1916.)
    “(1) That on the 8th day of May, 1914, the plaintiff was a foreign corporation, to wit, a Massachusetts corporation, and on said day entered into a contract with the defendant to furnish, deliver, and erect on foundations to be provided by the plaintiff all the fan apparatus, as called for in the specifications drawn up by the engineers and architects employed by the board of education in erecting the South High School Building, in the city of Grand Rapids, Mich.
    “ (2) That the said plaintiff at the time of making Said contract, on the 8th day of May, 1914, and at all other times before and since said date, and at the time of making said contract, did not hold an unrevoked certificate from the secretary of State, permitting and authorizing plaintiff to do business within the State of Michigan, as required by the statutes of the State of Michigan.
    “(3) That the defendants were solicited by plaintiff to enter into said contract, and that plaintiff first proposed and offered to sell to defendant the fan apparatus and material to be furnished in said contract, to be erected and installed by the defendant.
    “(4) That the defendant did not care to purchase said apparatus and install and erect the same, and so this contract was entered into on the 8th day of May, 1914, and the installing and erecting of this apparatus had nothing to do, or was not a requisite to the sale of said apparatus.
    “(5) That the apparatus called for in said contract to be furnished, delivered, and erected by the plaintiff could have been installed and erected by any competent engineer familiar with the installation and erecting of ventilating systems similar to the apparatus proposed to be erected by plaintiff.
    “(6) That a considerable portion of the business of plaintiff is the furnishing and delivering of fan apparatus and material, such as was proposed in the contract in, question, to be erected and installed by engineers and contractors other than those furnished by plaintiff.
    “(7) The court finds that the installing and erecting of the apparatus in controversy in the contract relied upon by plaintiff was not an essential requisite to the sale of this apparatus, or an essential requisite to the making of this contract; and plaintiff failed to show by evidence that this apparatus could not have been installed by other mechanics or engineers than those furnished by plaintiff.
    “Law.
    “(1) I, therefore, find as a matter of law, that the said plaintiff, B. F. Sturtevant Company, was a foreign corporation at the time the contract was entered into, and was without authority to do business within the State of Michigan.
    “(2) I find that this contract contemplates the doing of intrastate business, and not interstate commerce.
    “(3) I find that the defendant, Adolph Leitelt Iron Works, is not liable to the said plaintiff upon said contract sued upon, and that a judgment of no cause of action be entered in favor of said defendant, Adolph Leitelt Iron Works.”

      Plaintiff proposed amendments to the findings of both fact and law, which were refused, such refusal being followed by appropriate excéptions. The principal and controlling amendment proposed and refused is as follows:
    “The contract between the plaintiff and the defendant in this case is a contract which relates solely to commerce among the several States of the United States and is within the exception described in section 8 of Act No. 310 of the Public Acts of Michigan for the year 1907 as amended by later and supplementary acts.”
   Brooke, J.

(after stating the facts). The question is not a new one in this State. It has arisen several times under contracts containing varying provisions. The latest case upon the subject is Power Specialty Co. v. Michigan Power Co., 190 Mich. 699 (157 N. W. 408), where all the authorities are collected and discussed. That the question is-not without difficulty is indicated by the fact that both parties in the case at bar rely upon Power Specialty Co. v. Michigan Power Co., supra. Plaintiff’s counsel defines his position as follows:

“We, therefore, contend that the undisputed testimony discloses that the engineers who drew the specifications expressly inserted a clause requiring the manufacturer to install; that such a provision is customary, because only those specially skilled in the work can do it successfully; that there are companies who make a specialty of installing such systems, but none shown to be in Michigan; that the installation was only incidental to the main contract, because only costing 4.6 per cent, thereof. Such facts were most relevant to the issue, and should have been found.”

It is the claim of plaintiff that the testimony introduced on its behalf brings this case within that class of cases recognized in Browning v. City of Waycross, 233 U. S. 16 (34 Sup. Ct. 578), where a provision by the seller to install is essential to a sale “because of some intrinsic or peculiar quality or inherent complexity of the article.”

It is the claim of the defendant that the testimony, which was all introduced by the plaintiff, shows the exact converse of this proposition. Upon this point John H. Kassa, the sales engineer of the plaintiff who made the contract in controversy here, testified as follows:

“Q. The fact was you both tried to sell to the Leitelt Iron Works for them to install, did you not?
“A. Yes.
“The Court: What is the answer?
“A. That is correct.
“Q. And the Leitelt Iron Works did not want to take up that end of it?
“A. That is true.
"Q. By their installing, it means their assuming all responsibility of the men and any injuries that might develop to the men, etc.?
“A. Yes, sir.
“Q. Your company, if you can get a local concern to install, you desire to make a sale on that basis, if you can, do you not?
“A. We will if we can.
“Q. And if you can’t do it that way, you make the sale the other way, and your company install?
“A. Yes.”

Harry W. Paige, western manager for plaintiff, testified in part as follows:

“Q. State whether or not in this particular apparatus manufactured by the B. F. Sturtevant Company there is anything peculiar that requires, in order to make a sale of it, that the B. F. Sturtevant Company should erect it.
“A. There is; yes.
“Q. Explain to us in a general way in your own language, what that is and why it is.
“A. Well, the proper operation of the apparatus depends upon a correct installation and alignment. This is a special class of apparatus, and in this particular case the fan and the motor were being connected up together and would have to be in alignment for correct operation. Usually the people who bid_ on this class of work are not familiar with the handling and lining up of such apparatus, and the manufacturer is required to at least furnish a superintendent and in most cases completely install on the foundation this portion of the apparatus.
“Q. In your experience in making sales in Southern Michigan, in Grand Rapids, state whether or not you find it necessary in order to make the sale to agree to install it.
“A. We do.
“Q. State whether or not it would be possible for a person who had no previous experience with the Sturtevant apparatus to install it correctly?
“A. Well, it is barely possible; I would not say it was impossible.”

On cross-examination the same witness testified:

“Q. Isn’t it a fact, Mr. Paige, that very often the apparatus of the Sturtevant Company is sold and delivered to the purchaser and erected by him?
“A. Occasionally, yes.
“Q. So that there is no special ability required other than good mechanical ability and good electrical ability to erect this ventilating system, is there?
“A. Yes; I would say there was.
“Q. What is it?
“A. Experience.
“Q. Mechanical ability is experience. A mechanic that has had experience in this sort of mechanical work?
“A. Certainly; any mechanic who has had experience in this particular sort of mechanical work can erect it.
‘IQ. One who has put in ventilating systems of other companies or who.has done work of that nature would be able to follow the drawings and put up this apparatus, would he not?
“A. If he had been competent with the other firm, yes.
“Q. In other words, it is not and does not require, to make a successful job, the presence of your own mechanics and your own superintendent, does it?
“A. I could not answer that question without qualifying it.
“Q. People and customers do buy your apparatus and erect it themselves, do they not?
“A. Sometimes, yes.
“Q. And so far as you know, the operation of that apparatus, after it is erected, is just as successful as the apparatus erected by the B. F. Sturtevant Company, is it not?
“A. Not always.
“Q- Isn’t it as a general rule as successfully operated as the B. F. Sturtevant apparatus that is put up by their own men?
“A. No, sir.
“Q. Did you ever have any apparatus installed by the Sturtevant Company itself that did not operate properly?
“A. Yes, sir. •
“Q. That has also occurred with apparatus installed [by other people?
“A. Yes, sir.
“Q. So that the rule works both ways, doesn’t it?
“A. It does.
“Q. Do you know of any other apparatus, ventilating apparatus of your company, that has been installed in Grand Rapids by other people than the Sturtevant Company?
“A. Yes; I do.
“Q. Where?
“A. Hotel Pantlind.
“Q. Who installed that?
“A. If I recollect, Hanley-Casey Mechanical Equipment Company installed it.”

Arthur W. Boylston, an engineer connected with the Nearing & Henson Company, of Wilmette, 111., a man of considerable experience in the installation of ventilating apparatus, testified;

“Q. State whether or not as the result of your experience it would be necessary in a job of this size, in order to do the work properly, that the apparatus should be installed by some person or persons who are familiar with installing ventilating apparatus.
“A. The specific apparatus called for in these specifications most certainly should be installed by some one who had had considerable experience with the installation of similar apparatus, and of course preferably by the same manufacturer.”

On cross-examination he gave the following testimony:

“Q. Do you know of any other company installing apparatus similar to that installed here, the apparatus manufactured by the Sturtevant Company by any other concern?
“A. There is the Hanley-Casey Company, and I was identified with the L. H. Prentiss Company of Chicago.
“Q. Have they installed apparatus similar to this Sturtevant apparatus?
“A. Yes, sir.
“The Court: And who else? By similar you mean Sturtevant apparatus?
“Mr. Dunham: I mean similar, yes, to the Sturtevant apparatus.
“A. Assuming you mean the same type?
“The Court: Made by the same company.
“Mr. Dunham: Made by the same company and the same ..type.
“A. The L. H. Prentiss Company of Chicago; there is Kehm Bros. & Co. of Chicago. Might I refresh my memory? I have a list of the contractors, which comprises all contractors of heating and ventilating apparatus in Chicago.
“Q. Yes.
“A. Baker-Smith—
“Mr. Dunham: Where are they?
“A. These are all Chicago contractors. Davis Construction Company. You have Hanley & Casey. And General Fire Extinguisher Company. F. W. Lamb. Phillips & Gadskow. W. A. Pope. Thomas & Smith. Do you want some more? * * *
“Q. Then there is nothing about this particular work in the South High School, in the installation of it, but what these firms that you have named, and some of the others you know of, could do the work; they could do the work?
“A. They' could have done the work.
“Q. And from your experience, so far as that is concerned, any concern in the State of Michigan, Detroit, or Grand Rapids, equally well versed in the installation of that kind of apparatus, could also install it, could they not?
“A. Of course we must say equally well equipped with the same workings.
“Q. I mean any contracting firm who has done that kind of installing and has experience in that kind of business, the fact that they live in Chicago or Michigan would not make any difference, would it?
“A. If the workmen were of the same ability it would not make any difference where they lived.”

Everett S. Wood, head of plaintiff’s adjustment and credit department, after testifying that in order to effect sales of their apparatus, of the size and complexity of the apparatus in controversy in this case, it was necessary that the plaintiff company should either install the apparatus themselves or superintend its installation, said upon cross-examination:

“Q. Then would you say that an engineer technically trained and a mechanic technically trained with reference to blowpipe apparatus and ventilating apparatus would be able to successfully install any of this ventilating apparatus, including Sturtevant?
“A. Yes, indeed.”

From all the testimony contained in the record we have reached the conclusion that while the apparatus, the subject of the contract in this case, was somewhat complicated, it had no such “intrinsic or peculiar quality or inherent complexity” as made it necessary for the manufacturer to agree to install in order to effect sales generally; indeed, the contrary appears from the testimony of plaintiff’s witnesses. Many persons named by those witnesses purchase plaintiff’s apparatus and install them and make a business of installing them. The fact that defendant did not show affirmatively that there was a firm or individual in the State of Michigan capable of making the installation (apparently relied upon by plaintiff), is, we think, of no consequence. The record does show that the apparatus of the American Blower Company was installed in place of that which the plaintiff contracted to itself install. The record further shows that it is the claim of plaintiff that its apparatus is “equal to” the apparatus of the American Blower Company.

Upon a consideration of the whole record we conclude that the sale of plaintiff’s apparatus did not depend upon its agreement to install because of any “intrinsic or peculiar quality or inherent complexity,” and that therefore the contract was not within the exception described in section 8 of Act No. 310, Pub. Acts 1907, as amended by later and supplementary acts.

The judgment is affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
      In re CARPENTER’S ESTATE. AVERY v. WOODRUFF.
    1. Physicians and Surgeons — Dentists—Compensation.
    Under section 7 of Act No. 183, Pub. Acts 1913 (2 Comp. Laws 1915, § 6754), providing tbat any person shall be said to be practicing dentistry within the meaning of that act who shall treat disease or lesions of the human teeth or jaws, a regularly qualified dentist who administers treatment to a patient for an incurable cancer of the mouth, using cocaine and other drugs, under the direction of duly qualified physicians, in which administration some skill was required, may recover for such services either as services of a nurse or as services of a qualified dentist.
    2. Same.
    A regularly qualified dentist, in treating a patient for an incurable cancer of the moutH, under the direction of duly qualified physicians, is not practicing medicine within the meaning of Act No. 237, Pub. Acts 1899, nor of Act No. 368, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 6724-6734).

    Error to Livingston; Miner, J.
    Submitted April 18, 1917.
    (Docket No. 88.)
    Decided May 31, 1917.
    Rehearing denied December 28, 1917.
    E. L. Avery presented a claim against the estate of Henrietta Carpenter, deceased, for services rendered. The claim was disallowed in the probate court, and claimant appealed to the circuit court. Judgment for claimant. Defendant Russell Woodruff, executor, brings error.
    Affirmed.

      W. E. Robb and R. D. Roche, foi appellant.

      Louis E. Howlett, for appellee.
    Claimant, a duly qualified dentist, practicing his profession in the city of Howell, filed a claim against the estate of Henrietta Carpenter as follows:
    Bill of Particulars.
    Howell, Mich., Nov. 15, 1915.
    Mrs. Azel Carpenter to E. L. Avery, Dr.,
    Dentist.
    To treating and cleansing cancer of the mouth three times a day from February 12, 1915, to April 30, 1915, 77 days, at $2.00 per day......$154.00

      To treating and cleansing cancer four to six times a day from May 1, 1915, to July 3, 1915, 64 days, at $3.00 per day....................$192.00
    April 14, 1915. Cocaine and Antiseptic......... 4.00
    June 1, 1915. Cocaine and Antiseptic......... 4.00
    June 23, 1915. Cocaine and Antiseptic......... 4.00
    Total .................................... $358.00
    Feb. 28, 1915. By cash.................$10
    March 9, “ “ “ 10
    March 20, “ “ " 5
    March 24, “ “ “ 5
    April 1, “ “ “ 5
    April 10, “ “ “ 5
    April 22, “ “ “ 5
    April 27, “ “ “ 10
    May 26, “ “ “ 25
    May 15, “ “ “ 25
    May 28, “ “ “ 45
    June 9, “ “ “ .. ••.............. 20
    June 18, “ “ “ ¡25
    June 30, “ “ “ 25
    - $220.00
    Balance due.............................. $138.00
    It appears from the record that the decedent had suffered for some months from ,an incurable cancer of the mouth. She committed suicide on July 3, 1915, claimant having treated her from February 12, 1915, to the day of her death. During this period of treatment defendant cleansed and treated the cancer from three to six times each day, and removed therefrom from time to time pieces of bone. He administered to the decedent cocaine, morphine, and other drugs. Between March 23, 1915, and July 3, 1915, Dr. Huntington, a regular practicing physician and surgeon, made frequent visits to decedent. ' He knew from decedent and claimant that claimant was cleansing and caring for the cancer, and himself instructed claimant to administer antiseptic and anaesthetic drugs. No question is raised in this record as to the value of claimant’s services. At the conclusion of claimant’s case counsel for the estate made a motion for a directed verdict upon the ground that the services rendered by claimant were rendered for the treatment of a cancer by a man not shown to be legally qualified to practice medicine in the State of Michigan; that a treatment of cancer by a dentist is a treatment in violation of the law. Whereupon the court said to Mr. Howlett, counsel for claimant:

      “The Court: I don’t suppose, Mr. Howlett, you claim he is a doctor?

      “Mr. Howlett: Oh, no.

      “The Court: Simply he was performing services as a private citizen?

      “Mr. Howlett: Private citizen or nurse, under the direction of Dr. Sigler and Dr. Huntington. We object to the motion being granted.

      “Mr. Roche (counsel for defendant): I will say
    farther he has not shown himself to be a nurse who is authorized or empowered by the statute.

      “The Court: There is no statute on that in this State.

      “Mr. Roche: I understand. I wanted the motion on the record that any services rendered in furtherance of a contract, either express or implied, rendered in violation of the law are void.

      “The Court: The motion will be denied.”
    The court thereupon submitted the case to the jury, leaving them to determine the reasonable value of the claimant’s services. The jury returned a verdict in favor of the claimant in the sum of $138, the full amount claimed.

      On application of statute regulating practice of medicine, to persons giving special kinds of treatment, see notes in 3 L. R. A. (N. S.) 763; 24 L. R. A. (N. S.) 103; 25 L. R. A. (N. S.) 1297; 33 L. R. A. (N. S.) 179.

   Brooke, J.

(after stating the facts). Counsel for defendant’s estate says:

“The only question of importance involved in this case is whether the claimant in doing what he did for the decedent was engaged in the practice of medicine contrary to the provisions of Act No. 237 of the Public Acts of 1899 as amended (2 Comp. Laws 1915, §§ 6724-6734).”

The record shows beyond question that the treatments administered by the claimant were so administered from the very first under the direction of a duly qualified physician, first under Dr. Sigler, and later under Dr. Huntington. It further shows that such treatments were necessarily administered from three to six times each day; the lesion in the jaw being extremely painful and emitting a discharge highly offensive in odor. It further appears that in the administering of said treatments some skill was required. We are of opinion that claimant was entitled to recover upon either of two theories: First, that the services rendered were those of an ordinary nurse under the direction of a competent and duly qualified surgeon; and, second, that they were rendered by claimant as a duly qualified dentist under the provisions of Act No. 183, Pub. Acts 1913, section 7 (2 Comp. Laws 1915, § 6754) of which provides:

“Any person shall be said to be practicing dentistry within the meaning of this act * * * who shall * * * treat diseases or lesions of the human teeth or jaws, * * * or who shall for a fee, salary, or other award paid or to be paid, * * * treat diseases or lesions of the human teeth or jaws.”

The treatments administered by the claimant would clearly fall within the definition of the practice of dentistry contained in the statute.

We are of opinion that claimant in rendering the services for which claim is made was not practicing medicine within the meaning of Act No. 237, Pub. Acts 1899, nor of Act No. 368, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 6724-6734).

We find no reversible error in this record, and the judgment will stand affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.


author: BROOKE, J.

text:
    FEDERAL AUDIT CO. v. SAWYER.
    1. Appeal and Error — Review—New Trial.
    There is no question for the consideration of the Supreme Court on appeal where no request is made for findings of fact or law by the court, and no exception is taken to the making or filing of a judgment containing purported findings and no other exception is taken except as to the court’s refusal to grant a motion for a new trial.
    2. Same — Defective Record — Amendments.
    Where there are purported findings in a judgment but the record shows no request for findings nor exceptions, the record is not the subject of amendment on appeal by an offer to supply proposed findings and exceptions claimed to have been given to the court after the judgment.
    Error to Menominee; Flannigan, J.
    Submitted April 3, 1917.
    (Docket No. 13.)
    Decided May 31, 1917.
    Assumpsit by the Federal Audit Company, 'Limited, against Alvah L. Sawyer for services rendered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sawyer & Sawyer, for appellant.

      Corwin & Noreross, for appellee.
   BROOKE, J.

This case was heard by the court without a jury. At the conclusion of the taking of testimony and on the 24th day of November, 1914, the court filed the following paper, which is entitled “Judgment” in the printed record:

“In this court, the- parties being in court, by their respective attorneys, ready for trial, and the same having been duly brought on to trial before the court, without a jury, and the court, having heard the proofs and allegations of the parties, and the arguments of counsel, after mature deliberation thereon, finds that the plaintiff did employ the defendant to look after its interest in regard to its account against Abraham Sant, for services as expert accountant, and that his services therefor previous to the appeal to the Supreme Court is reasonably worth the sum of $50; and further finds that the plaintiff did employ the defendant to represent it in the appeal to the Supreme Court in the case of Sant et al. v. Perronville Shingle Company, and that his services and expenses therein were reasonably worth the sum of $133, of which amount $100 has been paid by the plaintiff, leaving a balance of $83, which the defendant is entitled to set off against the demand of the plaintiff.
“I further find that the said Alvah L. Sawyer did undertake and promise in manner and form as the said Federal Audit Company, Limited, hath, in its declaration in this cause, complained against him; and that the said plaintiff hath sustained damages, on occasion of the premises, after setting off the demand of the said defendant proven on said trial, over and above his costs and charges by it about its suit in this behalf expended, to the sum of $1,172.29.
“Therefore, on motion of Corwin & Souter, attorneys-for said plaintiff, it is ordered and adjudged by the court now here that the said plaintiff do recover against the said defendant its damages aforesaid, together with its costs and charges aforesaid, to be taxed, and that the said Federal Audit Company, Limited, have execution therefor.
“It is further ordered that the said defendant have until the first day of the next term of this court in which to settle a bill of exceptions or move for a new trial, that in the meantime all proceedings herein, except taxation of costs, be stayed, provided the said defendant shall, within 20 days from the entry of this order, execute and file the statutory stay bond in the sum of $2,344.58, with two sureties to be approved by the judge of this court.”

The printed record likewise contains the following:

“Judgment.
“(Filed and Entered November 24, 1914.)
“Judgment was entered on the same day for $1,-172.29, and the defendant was given a stay of 20 days, and a further stay until the next term of court, which occurred on the fourth Monday in January following, on filing a bond in double the amount of the judgment. Motion to set aside the judgment and for a new trial was made and entered on the 7th day of May, 1915, which motion is as follows.”

There was. no demand made by or on behalf of the defendant for findings of fact and law, and none were in fact made by the court. No exception was taken to the making or filing by the court of the paper above set forth called “Judgment” in the record. On May 8, 1915, about 5% months after the rendition of said judgment, defendant filed a motion for a new trial, setting up five distinct grounds therein. On January 24, 1916, the court filed a paper labeled in the record, “Reasons for Denying New Trial and Findings of Fact,” the concluding sentence in which follows: “The motion for new trial for reasons appearing in the foregoing is denied.” To this action of the court defendant took the following exception: “To said refusal to grant said motion, the defendant herein duly excepted.” We are unable to discover any other exceptions in the record.

Defendant reviews his case in this court under 26 assignments of error, all of them based upon alleged errors in the findings of the court filed upon his denial of motion for a new trial.

We are of opinion that there is nothing before this court for consideration, under the following cases:

In Stafford v. Crawford, 118 Mich. 285 (76 N. W. 496), it is said:

“Insuperable.objections to a consideration of the points made confront us. The record shows that no request for a finding of facts or law was presented before judgment. After judgment was entered, a finding was made on request of the appellant, .but no exception to this finding was filed. Circuit Court Rule No. 26 has been ignored. In Brown v. Haak, 48 Mich. 229 (12 N. W. 219), it was. held that the request for findings must precede the entry of judgment. Indeed, the language of -the rule is plain_ and unambiguous. We held in Coit v. Judge of Superior Court, McGrath, Mand. Cas. No. 704, that a trial court may vacate a judgment to afford opportunity for presenting a request for findings in a proper case, but no showing authorizing such action was made or attempted in this case. The appellee objected to the court’s filing findings, and, as the findings were not authorized while final judgment stood, we think the appellee was not bound to propose amendments, and was justified in ignoring the findings. The failure to file exceptions to the findings would also, even if the findings were regular, preclude us from examining any other question than that of whether the findings support the judgment. Weist v. Morlock, 116 Mich. 606 (74 N. W. 1012).”

In Rice v. City of Muskegon, 150 Mich. 679 (114 N. W. 661), it is held:

“No request for * * * findings of fact and law was made. * * * The court made a statement in deciding the case, which was taken down by the reporter, but this is not the findings contemplated by Circuit Court Rule 26. * * * Even if the opinion of the court could possibly be treated as findings, as there are no exceptions to such findings, this case must be affirmed, unless there was reversible error on the trial, or unless there is a total want of evidence to support the judgment.”

Again, in Moore v. Supply Co., 171 Mich. 400 (137. N. W. 270), this court said:

“The judge before whom the cause was tried, without a jury, filed an opinion, but filed no finding of facts and law. It does not appear that he was requested to make findings. It does not appear that exceptions were taken to such conclusions, as from the opinion appear to have been reached.
“Various errors are assigned by the plaintiff, but one of which — the last — which refers to the refusal of a new trial,, appears to be based upon an exception. If there are others, they are not pointed out either by the record or by the brief. A motion for a new trial does not perform the office of supplying exceptions not taken at the trial. It has been repeatedly held that, where no request is made for a finding either of law or facts as required by the rule, and the trial judge does not make any such finding, there is nothing for this court to review.”

Recognizing the infirmity of the record, defendant in his supplemental brief says:

“It is possible that the original (plaintiff’s proposed findings of fact and law), having been sent to the judge at chambers, was not placed in the files, and the same with exceptions thereto and requested findings of fact and conclusions of law thereafter furnished to the court with a copy to plaintiff’s counsel by the defendant.
“In support of this position, we will forward to the clerk of this court (for reference if desired) the letter quoted above, over the signature of plaintiff’s attorneys, the copy of plaintiff’s proposed findings of fact and conclusions of law, over the signature of plaintiff’s counsel, our office copy of defendant’s objections to plaintiff’s requests, and defendant’s requested findings of ffact and conclusions of law; and a copy received from plaintiff’s counsel of plaintiff’s objections, over the signature of its counsel, to defendant’s request for findings; also our office carbon copy of letter with which our proposed findings of fact, and our notice of motion for new trial were sent to plaintiff’s attorneys May 7, 1915, which letter fully explains that delay had been unavoidable because of illness of defendant and members of his family.”

It is clear that a defective record cannot be amended in a manner suggested by defendant.

The judgment is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred. Stone, J., did not sit.


author: Fellows, J.

text:
    SPEDDING v. GRIGGS.
    1. Appeal and Error — Directed Verdict — Evidence.
    On appeal, in considering the request of defendant for a directed verdict, the facts, although in conflict, must be considered by the Supreme Court as testified to by plaintiff and his witnesses.
    2. Frauds, Statute of — Sales—Delivery—Carriers.
    As a general rule, the delivery to a common carrier of goods sold is not such a delivery to the purchaser as satisfies the statute of frauds.
    S. Same — Oral Contracts — Carriers—Agency.
    One who purchases goods under an oral contract which is void under the statute of frauds cannot by a contract with a carrier for transportation of the goods thereby make the latter his agent to accept the goods, in so far as the statute of frauds is involved.
    4. Same — Sales—Delivery—Draft Attached to Bill of Lading.
    There is no delivery of goods to the purchasers, taking the case out of the statute of frauds, where a contract which is void and unenforceable under the statute is made for the sale of goods which the parties agree should be shipped to the seller as consignee with bill of lading and draft attached and the purchasers notified, and delivery is made to the carrier for such shipment.
    5. Same — Sales—Intention of Parties.
    A case cannot be taken out of the statute of frauds by the intention of the parties, as acts, ánd not words, are required for such purpose.
    Error to Wayne; Murphy, J.
    Submitted April 17, 1917.
    (Docket No. 142.)
    Decided May 31, 1917.
    Assumpsit in justice’s court by George F. Spedding against Albert G. Griggs, Charles F. Fuller and Ernest M. Cole, copartners as Griggs, Fuller & Company, for breach of an alleged contract for the purchase of certain apples. There was judgment for plaintiff and defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Ward N. Choate, for appellants.

      Lewis A. Stoneman, for appellee.
   Fellows, J.

This case grows out of a verbal contract of sale of some 146 barrels of apples at $2.25 per barrel. The defense is the statute of frauds. No money was paid and there was no delivery, unless, under the facts of the case, the delivery to the railroad company constituted a delivery sufficient to take the case out of the statute. While the facts are in conflict, we must, on defendants’ request for a directed verdict, consider them as testified to by plaintiff and his witnesses. This testimony shows, or tends to show, that in April, 1912, Mr. Fuller, a member of defendant firm, called on plaintiff at Imlay City with reference to the purchase of the apples. They were looked over and the price agreed upon. Defendant stated that he would take them if he could get a car and ship them at once. They went over to the depot, found there was a car there, the parties looked it over, and defendant told the agent that the car was all right and he could load it with apples for Detroit. Plaintiff called one of his employees, a Mr. Hagerdorn, over, and defendant instructed him to have the doors cleated open for purposes of ventilation and to load the car at once. Plaintiff further testifies that he and defendant were to leave on different trains, and that defendant said to him that he did not have his check book with him and to ship the apples to his (plaintiff’s) order, and notify the deféndants and they would pay the draft when it came down. The apples were shipped to Detroit, consigned to plaintiff, and he attached the bill of lading to a draft, sent it to a Detroit bank, with instructions to notify defendants.' A few days after that he received by telephone information that defendants declined to accept the apples, claiming they were not good enough; that they would handle them on commission, but would not take them. Plaintiff insisted that they were defendants’ apples, made a trip to Detroit in an unsuccessful attempt to get the defendants to take them, and finally sold them through a commission house, netting him only $82.68. This action was then brought. Defendants bring the case, here to review a judgment rendered in favor of the plaintiff.

It is a general rule in this jurisdiction that delivery to a common carrier is not such a delivery to the purchaser as satisfies the statute of frauds. Grimes v. Van Vechten, 20 Mich. 410; Kuppenheimer v. Wertheimer, 107 Mich. 77 (64 N. W. 952, 61 Am. St. Rep. 317); Smith v. Brennan, 62 Mich. 349 (28 N. W. 892, 4 Am. St. Rep. 867); Gatiss v. Cyr, 134 Mich. 233 (96 N. W. 26, 2 Am. & Eng. Ann. Cas. 544). In the case of Grimes v. Van Veehten, supra, Chief Justice Campbell, speaking for the court, said:

“But where the delivery to the carrier is merely in pursuance of the same verbal contract under which the goods were purchased, and the carrier has no independent and separate authority to act for the purchaser, his reception of the goods could only be valid because the contract itself was valid. And if the delivery and acceptance was the first transaction which gave force to the contract in the case before us, it is clear that it must have been a delivery to the party, and to no one else.”

In the case of Smith v. Brennan, supra, the purchaser had directed the shipment of the goods by the Merchants’ Despatch. This court said, speaking through Mr. Justice Morse:

“The carrier could not accept the goods, within the statute of frauds, under the previous ruling of this court. It is not shown that the Merchants’ Despatch had any independent or separate authority to act for Walsh, and accept the goods when delivered to it in his behalf. And if the contract of sale was void, as it unquestionably was, it could furnish no authority to a third party, the carrier, to ratify it.”

An examination of the record in the case of Gatiss v. Cyr, swpra, discloses a stronger case than the instant one. There was testimony in that case tending to show that defendant procured the car, that it was used, not only to ship plaintiff’s potatoes in, but also to ship other potatoes bought by defendant, and that the defendant paid the freight. The trial court directed a verdict for the defendant on the ground that the transaction was within the statute of frauds. This court affirmed the judgment, stating that the common carrier was not the agent of the purchaser so as to make delivery to it a sufficient delivery to satisfy the statute of frauds.

We do not undertake to say that the purchaser may not authorize an agent to accept delivery for him, and may not make a common carrier such agent. What we do hold is that by contracting for transportation of the goods he does not thereby make the transporting company his agent to accept the goods, when the statute of frauds is involved. By entering into a contract of carriage he does not, as an incident thereto, enter into a contract of agency. The contract entered into by the parties to this case was within the statute of frauds and wholly void. By entering into a contract of carriage, an entirely separate contract, the defendant did not validate this void contract between him and plaintiff, nor did he make the carrier his agent to validate it, nor could the plaintiff by his own act in delivering the goods to such carrier, a third person, create a liability on the part of the defendant which did not exist before, or make valid a wholly void contract.

But there is another complete answer to the plaintiff’s right of recovery. When these parties went to the depot to see if they could get a car, their contract was void and unenforceable. After the car had been arranged for it was still a void contract and unenforceable. They then agreed, as claimed by plaintiff, that the goods should be consigned to plaintiff and the bill of lading should be sent with draft attached, and defendants were to be notified. When plaintiff delivered the apples to the carrier it was under this arrangement and the goods were consigned to him. Surely this was not a delivery to the defendants, and did not take the case out of the statute.

This is not the case of a valid contract of sale, where the question involved is when does the title pass, and where the intention of the parties would be an important, if not a controlling, factor. A case cannot be taken out of the statute of frauds by the intention of the parties. To so hold would be to render the statute nugatory. Acts, not words, are required to take a case out of the statute. Gorman v. Brossard, 120 Mich. 611 (79 N. W. 903).

The court should have directed a verdict for the defendants as requested.

The judgment is reversed, and a new trial ordered, with costs of this court.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


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    SPIEGEL v. STRAW.
    1. Animals — Distraint Damage Feasant — Trover — Statute — Remedy.
    Where the validity of the restraint of a trespassing animal is in question the special remedy of replevin provided by 3 Comp. Laws 1915, § 13117 et seq., governs, and trover will not lie.
    2. Same — Damages.
    One who distrains a hog trespassing on premises occupied by him is entitled to at least nominal damages.
    3. Same — Distraint Damage Feasant — Regularity of Proceedings — Bona Fides.
    The question of irregularity in distraint proceedings cannot be determined in an action of trover for the conversion of a hog, which defendant claims to have restrained under the statute, as the question is whether his claim was made in good faith.
    4. Same — Distraint Damage Feasant — Damages.
    A hog which is found trespassing on property occupied by a person is distrained in good faith under 3 Comp. Laws 1915, § 13117 et seq., where it is found by such person upon his premises and he shuts it up, notifies the wife of the owner and requests her to have her husband, who is absent, come to his place as soon as he returns, and in a few hours the owner is in fact actually notified of the hog’s detention, and, upon his not calling, a written notice of distraint and demand of payment for care and expense is made, and he later causes the amount due to be determined, although he tells the owner’s wife at the time of the talk with her that the damage was nothing.

    Error to Genesee; Stevens, J.
    Submitted April 9, 1917.
    (Docket No. 98.)
    Decided May 31, 1917.
    Trover by Frederick F. Spiegel against Burt Straw for the conversion of a hog. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Daniel Heims, for appellant.

      Clarence Tinker, for appellee.

      On liability of owner, for injury to person or property on highway by animal at large thereon, in violation of statute, see note in 16 L. R. A. (N. S.) 647.

   Fellows, J.

This action originated in justice’s court, and is brought in trover for the conversion of one male hog, of the value of $50. The plaintiff and defendant are neighboring farmers, residing in Fen-ton township, Genesee county. The hog in question was distrained damage feasant by defendant in the spring of 1915. Almost immediately after distraining the hog, defendant notified plaintiff’s wife in his absence of such distraint, and upon her husband’s return in a few hours she notified him. Instead of seeing defendant himself, plaintiff sent his wife. She testified that she demanded the hog and offered to pay the damages, but the defendant told her the damage was not anything, that he wanted to see her husband, and wanted him to come himself. It is not claimed that any tender of nominal or other damages was made, or any offer to pay the expenses of the distraint. The plaintiff never called on the defendant, took no steps to adjust matters with him, and did not apply to have the amount for which he was liable fixed by the disinterested persons, as provided by the statute. Plaintiff gave testimony tending to show the value of the hog as alleged in the declaration. Defendant testified to the circumstances of the distraint, and denies that he said there were no damages, but gives his reasons for declining to discuss the damages with Mrs. Spiegel. Plaintiff then sought to show irregularities in the proceedings taken by defendant, but was precluded from so doing, and a verdict was directed by the court for the defendant upon the ground that trover would not lie for property distrained damage feasant; that the special remedy of replevin provided in the statute was exclusive of other remedies. The plaintiff brings the case here upon writ of error.

The statute under consideration is not a new on.e. It has existed in its present form for over 70 years. Chapter 125, Revised Statutes 1846. During that time it has frequently been construed by this court. As construed, it provides fully and completely the necessary proceedings to protect the rights of both parties. It provides the steps to be taken by the landowner, and gives to the owner of stock distrained a remedy by way of special proceeding in replevin to test the validity of the restraint. We quote two of the sections. Section 21 (section 10708, 3 Comp. Laws; section 13764, 5 How. Stat. [2d Ed.]; 3 Comp. Laws 1915, § 13120) provides:

“If the beasts shall be replevied and delivered to the plaintiff, and judgment of nonsuit or of discontinuance be rendered against the plaintiff, or if it appear on the trial that the beasts were lawfully distrained, the defendant shall have judgment for such, sum as shall be due from the plaintiff, for the penalty or forfeiture, or for the damages for which the beasts were impounded, together with all the lawful fees, costs, charges and expenses incurred by reason of the distress, to be assessed as in other cases, and also his costs of the action of replevin.”

Section 22 (section 10709, 3 Comp. Laws; section 13765, 5 How. Stat. [2d Ed.]; 3 Comp. Laws 1915, § 13121) provides:

“If the plaintiff shall recover judgment against the defendant by default, or if it shall appear upon the trial that the beasts were distrained without any sufficient or justifiable cause, the plaintiff shall recover his damages caused by the unlawful detention of such beasts, to be assessed as in other actions of replevin, together with his costs of suit.”

It will thus be seen that, in case of nonsuit, discontinuance, or .the establishment of a lawful restraint, defendant recovers Ms damages, fees, costs, charges, and expenses, and in case of default of defendant, or failure on his part to show sufficient or justifiable cause for distraint, plaintiff recovers his damages, together with his costs; the rights of both parties are finally litigated and adjudicated in the one suit. It was said by this court in the case of Johnson v. Wing, 3 Mich. 163, where the plaintiff had brought replevin under the general statute:

“We think the remedy given by chapter 125 is a special proceeding adapted to this case of distress of property, and that it expressly negatives a remedy by replevin in any other manner than is therein provided. We are therefore of the opinion that the plaintiff has not pursued the remedy prescribed by the law which governs in such cases, and that he cannot recover in this action.”

To the same effect see Marx v. Woodruff, 50 Mich. 361 (15 N. W. 510); Campau v. Konan, 39 Mich. 362; Hamlin v. Mack, 33 Mich. 103.

The reasoning of these cases and others which might be cited, precludes resort to an action of trover for property taken damage feasant, and this court so held in Norton v. Rockey, 46 Mich. 460 (9 N. W. 492).

The provisions of this statute are well calculated to prevent a multiplicity of suits, and to adjust all the rights of the parties in one case. We are not inclined to overrule the cases cited, but adhere to the holding that the remedy provided by this statute is exclusive. Had this statutory proceeding been resorted to in this case, the question of the regularity of defendant’s proceedings and the rights of both parties could have been adjudicated, and it is highly improbable that either the circuit court or this court would have been called upon in this controversy. This court has held that:

“A mere claim that beasts had been distrained, where in fact they had not been, and the claim was but a mere pretense — an afterthought — would not defeat the plaintiff’s right to maintain replevin under the general statute.” Campau v. Konan, supra.

But there is in the instant case absolutely nothing that would justify the submission to the jury of the question of whether the defendant in good faith claimed upon the trial of the case that he distrained the hog under the provisions of the statute. The hog was trespassing on defendant’s premises. Defendant shut him up, and went to the home of the plaintiff, and, finding plaintiff absent, notified his wife and requested her to have her husband come over as soon as he returned. In a few hours plaintiff received actual notice of the hog’s detention. This was sufficient under Norton v. Rockey, supra.

Defendant was entitled to at least nominal damages, but his testimony shows damages to a substantial amount. If his testimony is to be given any force, and it is undisputed, the damages were of that character that he might well prefer to discuss with plaintiff, instead of his wife.

The plaintiff not having called on defendant, defendant gave him a written notice that he had dis-trained the hog and demanded payment for damages for care and expense, and later caused the amount due him to be determined. Whether the proceedings were regular cannot be determined in this case, nor are they before us; but these facts clearly demonstrate and prove that defendant actually distrained the hog in question under the provisions of this act and took steps to make such distraint effective. Whether the steps were all regular is not before us. The fact, standing alone, that he told plaintiff’s wife that the damage was not anything, has no tendency to establish that defendant’s claim of his rights under the statute is a subterfuge, an afterthought, and not made in good faith. The question is, not what amount of damages has defendant suffered, not whether he is claiming excessive damages, not whether he was willing to waive any damages, but whether his claim that he destrained plaintiff’s hog when the same was trespassing on his premises is a mere pretense, a subterfuge, an afterthought, and not made in good faith, but made for the purpose of relegating plaintiff to his remedy under the statute.

We are unable to find anything in this record justifying the submission of this question to the jury. ,The court correctly excluded the question of the regularity of the proceeding, and properly directed a verdict for the defendant.

The judgment is affirmed, with costs.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


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    SPIEGEL v. STRAW.
    1. Animals — Distraint on Animals at Large — Highways and Streets — Statutes.
    Under 2 Comp. Laws 1915, § 7287, the owner and occupant of land may distrain animals which are running at large in the highway opposite his land.
    2. Same — Highways and Streets — Agency.
    The owner and occupant of land who has the right to dis-train animals which are in a highway opposite his land may do so either himself or by his authorized agent.
    3. Same.
    Where a wife occupying land with her husband distrains animals running at large in the highway opposite the premises as an authorized agent of her hushand it is immaterial whether she is an occupant of land within 2 Comp. Laws 1915, § 7287, so as to be personally authorized to distrain such animals.
    4. Same — Distraint—Regularity of Proceedings — Statutes.
    The regularity of proceedings for the distraint of an animal taken while running at large in a highway cannot be tested in an action of trover, and can only be tested in the special action of replevin provided by 3 Comp. Laws 1915, § 13117 etf seq.

    5. Same — Evidence.
    The price at which cattle are sold in distraint proceedings is some evidence of their value.
    6. Appeal and Error — Evidence — Admissibility — Harmless Error.
    In an action of trover for the distraining of cattle, any error in the admission of evidence as to the price at which the cattle were sold is harmless where the question of the value of the animals is not reached by the jury.
    7. Same — Trial—Instructions—Harmless Error.
    The admission of evidence of the distraint proceedings taken by defendant for the purpose of showing their regularity was harmless where the court, in its charge, told the jury repeatedly that the only question.for their determination was whether the cattle were running at large and did not submit the question of regularity or want of regularity of the proceedings to the jury.
    8. Same.
    In an action of trover for cattle distrained, the objection that the trial court gave undue prominence to the testimony of defendant’s wife, who had shut up the cattle, and did not call attention to the fact that the testimony of plaintiff's hired man, who disputed her, was corroborated by other witnesses, was untenable, where, although the court in one part of its charge did state the claim of defendant as testified to by his wife and the claim of plaintiff as testified to by plaintiff’s hired man and said, “There is the testimony of the two,” he later in the charge again mentioned the conflict between the two witnesses, and called attention to the fact that testimony had been given by both parties tending to corroborate the testimony of each, as the charge must be considered in its entirety, and, when so considered, was sufficient.

      9. Animals — Restraint oe Animals at Labge — Owner’s Knowledge.
    Where cattle are running at. large in a highway they are subject to restraint, irrespective of knowledge thereof or negligence on the part of the owner.
    Error to Genesee; Stevens, J.
    Submitted April 9, 1917.
    (Docket No. 97.)
    Decided May 31, 1917.
    Trover by Frederick F. Spiegel against Albert D. Straw for the conversion of certain cattle. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Daniel Heims, for appellant.

      Clarence Tinker, for appellee.
   Fellows, J.

The parties to this litigation are the same as in case No. 27606, handed down herewith. Spiegel v. Straw, ante, 576 (163 N. W. 2). This case, like that one, is trover for beasts distrained, and involves five head of cattle, The circumstances of shutting the cattle up is in conflict; the plaintiff claims they were upon the highway opposite defendant’s land when taken by defendant’s wife, but claims they were not running at large, while she claimed they were on the premises owned by her husband. The court submitted the question to the jury as to whether the cattle were running at large, and charged that if they were, or were trespassing on defendant’s premises he was entitled to a verdict; otherwise, the plaintiff was entitled to recover their value. The jury found for the defendant, and plaintiff brings the case here.

The defendant was the owner and occupant of the land opposite the highway where the cattle were, if they were in the highway as claimed by plaintiff. If they were running at large, defendant had a right to distrain them. Section 5608, 2 Comp. Laws (2 Comp. Laws 1915, § 7287). If defendant had the right to distrain them, he could do so, either by his own act or that of his duly authorized agent. It was, therefore, competent for him to prove that his wife, in shutting up the cattle in his absence, did so pursuant to his directions and instructions, and, having proved this without dispute, the interesting question of whether a wife occupying land with her husband is an occupant of the land, within the meaning of the statute above cited, becomes unimportant. Within 12 hours defendant ratified the acts of his wife by causing written notice of the distraint to be served on the plaintiff.

The plaintiff, having had notice that defendant had distrained his cattle, should have brought the special action of replevin under the statute, if he desired to test the regularity of the proceedings. He cannot do so in an action of trover. It will be unnecessary for us to repeat what we have already said on this subject in the other case.

Error is assigned on the admission of testimony showing what the cattle sold for. If the jury had reached the question of damages, this would be some evidence of value; but, that question not having been reached by the jury, we cannot understand how plaintiff can claim to have been injured by this evidence.

The defendant, over plaintiff’s objection, gave evidence of the proceedings taken by him for the purpose of showing regularity thereof. As the court in his charge told the jury repeatedly that the only question for them to determine was whether the cattle were running at large, and did not submit the question of the regularity or want of regularity of the proceedings to the jury, the error, if any, was without prejudice.

It is insisted that the trial court gave undue prominence to the testimony of defendant’s wife, and did not call attention to the fact that the testimony of plaintiff’s hired man, who disputed her, was corroborated by other witnesses. It is true that in one part of his charge the court did state the claim of defendant as testified to by Mrs. Straw and the claim of plaintiff as testified to by the hired man, and said, “There is the testimony of the two.” He later in his charge again mentioned the conflict between these two witnesses, and called attention to the fact that testimony had been given by both parties tending to corroborate the testimony of each. The charge must be considered in its entirety, and when so considered this charge is not open to the objection here urged.

It is contended by plaintiff that stock cannot be considered as running at large when they have escaped their owner’s inclosure, if the fence was a proper one, until the owner has knowledge that they are in the highway, and the court was requested to so charge. This he refused to do, and properly so. If the cattle were running at large in the highway, they were subject to distraint, and this does not depend upon knowledge or negligence on the part of the owner.

No error appearing on this record to the prejudice of the plaintiff, and we have examined it with care, the judgment is affirmed, with costs to the defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


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    SIMON v. DETROIT UNITED RAILWAY.
    1. Total — Instructions — Requests to Charge — Appeal and Error.
    A party is entitled to have the law of the case stated to the jury by the court, and when this is done it is not error to refuse specific requests.
    2. Negligence — Gross Negligence — Definition.
    Gross negligence may be defined as the intentional failure to perform a manifest duty in wanton, wilful or reckless disregard of the consequences as affecting the life or property of another, and it also implies a thoughtless disregard of consequences without the exercise of any effort to prevent or avoid them.

    3. Same — Gross Negligence — Contributory Negligence — Damages.
    Where gross negligence of the defendant causes the injury, the plaintiff may recover notwithstanding his contributory negligence.
    4. Same — Gross Negligence — Discovered Peril — Damages.
    Where the defendant discovers the peril of the plaintiff seasonably to prevent the accident, but in reckless, wanton or wilful disregard' of the consequences omits to do what he ought to do or does what he ought not to do to avoid the accident, he is liable for such negligence.
    5. Street Railways — Collision—Personal Injuries — Question for Jury — Appeal and Error.
    There is no error in refusing to submit the question of gross or discovered negligence to the jury, in an action by the driver of a wagon to recover for injuries received in a collision with a street car, where plaintiff, although he saw defendant’s car coming, attempted to cross the car tracks in front of the approaching car and was struck and injured by it, although the motorman, as soon as he saw plaintiff, put on the reverse and did everything possible to stop the car, according to undisputed testimony of the motorman and passengers. ,

      Error to Wayne; Mandell, J.
    Submitted April 13, 1917.
    (Docket No. 2.)
    Decided May 31, 1917.
    Case by Moses Simon against the Detroit United Railway for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Benjamin & Betzoldt, for appellant.

      Corliss, Leete & Moody (Frederic T. Harward, of counsel), for appellee.

      As to whether wantonness or wilfulness may preclude defense of contributory negligence, see note in 21 L. R. A. (N. S.) 427.

   Fellows, J.

The plaintiff was injured on March 21, 1913, while attempting to cross the tracks of defendant on Fort street, in the city of Detroit. He brought this action in the Wayne circuit court, and failed to recover at the hands of a jury; he brings the case here for review. It is his claim that he was driving west on Fort street with a one-horse junk wagon, on the forenoon in question, with 14 bags of bottles on the wagon; that as he approached the intersection of Campau street he got off to fix one of the bags which was striking the wheel; that, desiring to go on Campau, he looked both ways to see if there was an approaching car; that there was no car coming from the west, that he saw a car some distance away, coming from the east; that it was such a distance away he supposed, and had a right to suppose, that he had ample time to cross the tracks before the car reached Campau, and that he turned across the track, continuing to look at the approaching-car; that the car was running 25 to 30 miles an hour, and before he was able to get across he was struck and injured. He claims that the defendant was negligent, and that he was free from any negligence contributing to the injury. The defendant claims that the plaintiff, when the car was within 15 or 20 feet of him, swung in ahead of the car to go.down Campau; that the car was running six or seven miles an hour; that its motorman at once applied the brakes and reversed the car and stopped it as soon as possible; that it was not negligent; and that the plaintiff was guilty of contributory negligence.

The only errors discussed in plaintiff’s brief, and therefore before us, relate to the refusal of the court to charge the jury as requested. Seven of the requests relate to what would constitute actionable negligence on the part of defendant and contributory negligence on the part of the plaintiff. The other three relate to the refusal of the court to submit the question of gross negligence to the jury.

It is not urged in the brief that any error was committed in the charge as given, and we are unable to discover any; it very clearly states the law applicable to the case. Several of plaintiff’s requests were from charges that have been approved by this court, and correctly state the law.

It is the duty of the court to prepare the charge ; requests perform an important function in calling his attention to the rules of law applicable to the case and the claims of parties, and, where they correctly state the law, may well be incorporated in the general charge, but where the charge covers the law of the case and the requests are given in substance, no error can be predicated upon the refusal to use counsel’s language, or the language of an approved charge. A general charge covering the claims of the parties and the law applicable to the case will usually be better understood by the jury, and more helpful to them in reaching a correct solution of the case, than the reading of isolated requests. A party is entitled to have the law of the case stated to the jury by the court, and, when this is done, it is not error to refuse specific requests. Westra v. Estate of Westra, 101 Mich. 526 (60 N. W. 55); Barschow v. Railway Co., 147 Mich. 226 (110 N. W. 1057); Comstock v. Township of Georgetown, 137 Mich. 541 (100 N. W. 788); People v. Hubbard, 92 Mich. 322 (52 N. W. 729); Stevens v. Pendleton, 94 Mich. 405 (53 N. W. 1108). In the instant case the court, in a concise charge, covered the law of the case, and in apt language gave to the jury the substance of such requests as plaintiff was entitled to.

Gross negligence may be defined as the intentional failure to perform a manifest duty, in wanton, wilful, or reckless disregard of the consequences, as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exercise of any effort to prevent or avoid them. Schindler v. Railway Co., 87 Mich. 400 (49 N. W. 670); Denman v. Johnston, 85 Mich. 387 (48 N. W. 565); Buckley v. Railroad Co., 119 Mich. 583 (78 N. W. 655); Berry v. Railway Co., 173 Mich. 181 (138 N. W. 1038); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); Putt v. Railway Co., 171 Mich. 216 (137 N. W. 132); Wexel v. Railway Co., 190 Mich. 469 (157 N. W. 15).

Where gross negligence of the defendant causes the injury, the plaintiff may recover, notwithstanding his contributory negligence. V/here the defendant discovers the peril of the plaintiff seasonably to prevent the accident, but in reckless, wanton, or wilful disregard of the consequences he omits to do what he ought to do, or does what he ought not to do, to avoid the accident, he is liable.

We have searched this record with care and failed to find any evidence showing, or tending to show, any facts which would justify the submission of the question of gross or discovered negligence to the jury. This is not a case where the plaintiff was driving on the track ahead of the car, and was for considerable distance in plain view of the motorman; the accident occurred while plaintiff was attempting to cross the tracks. There is nothing in the record showing, or tending to show, that the motorman knew that plaintiff was in danger, or did not heed the danger, and after -knowing that fact, he, the motorman, did or omitted to do anything which would have avoided the accident; on the contrary, the motorman’s testimony that as soon as he saw plaintiff he put on the reverse and did everything possible to stop the car is undisputed and is corroborated by the testimony of passengers on the car. Under these circumstances there was no error in refusing to submit the question of gross negligence to the jury.

It follows that the judgment should be, and it is, affirmed, with costs to the defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


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    JOHN SCHWEYER & CO. v. MELLON.
    1. Mortgages — Fraud—Burden of Proof — Bona Fides.
    Where fraud in procuring a note and mortgage is established by defendant, in a suit to foreclose an assigned mortgage, the burden devolves upon plaintiff to prove that it was a holder for value before maturity without notice.
    2. Same — Foreclosure by Assignee.
    The assignee of a mortgage, being the equitable holder thereof, is entitled to file a bill for foreclosure.
    3. Same — Evidence—Bona Fides.
    Evidence held, insufficient to show that plaintiff was a holder for value, or without notice, of the assigned mortgage.

      4. Sales — Fraudulent Representations — Caveat Emptor.
    Where one makes false representations of material facts, which are exclusively within his knowledge, and the other party relies upon them to his injury, liability for such false representations follows, and it does not lie in the mouth of the party perpetrating such fraud, when called to account, to say that his victim should have been more vigilant, should have been less credulous.
    5. Same — Contracts—Fraud—Rescission—Laches.
    Defendant was not guilty of laches in rescinding a contract for the purchase of a saloon business where he conducted the business for less than three months and, after putting additional money into the business in order to make it pay, if possible, he demanded a return of the mortgage given to secure the purchase price and, within four months, turned over the business to the person from whom he had purchased such interest and brought suit for the rescission of the sale on the ground of fraud.
    6. Same — Set-off and Recoupment^-Damages.
    The purchaser of an interest in a saloon business may, without rescinding the contract for fraud in its procurement, when suit for foreclosure is brought by an assignee who is not a holder in good faith of the mortgage given to secure payment of the purchase price, offset in such suit damages growing out of such fraud where such damages exceed the amount of the mortgage.
    Appeal from Chippewa; Fead, J.
    Submitted April 3, 1917.
    (Docket No. 14.)
    Decided May 31, 1917.
    Bill by John Schweyer & Company against Joseph T. Mellon and another to foreclose a mortgage. Defendants filed an answer in the nature of a cross-bill asking for the cancellation of the mortgage as fraudulent. From a decree dismissing both bill and cross-bill, plaintiff appeals.
    Affirmed.

      Davidson & Hudson, for plaintiff.

      McDonald Kaltz, for defendants.
   Fellows, J.

Plaintiff is an Illinois corporation engaged in the wholesale liquor business at Chicago. It seeks by this proceeding the foreclosure of a mortgage executed by the defendants on the 20th day of November, 1912, to one Albert E. Hagen, for the sum of $1,250, on lands situated in Chippewa county, and which mortgage it alleges was assigned to it early in December of the same year. The defendants answer the bill, and allege in detail fraud on the part of Hagen in procuring the mortgage in question, and deny its validity; also, deny its assignment to plaintiff, and deny that plaintiff is a holder in good faith and for value. It is unnecessary to here detail the allegations of the answer, as they are sufficiently broad to justify the admission of testimony of the facts which we shall presently relate. The defendants, by way of cross-bill in their answer, set up the facts constituting the fraud of Hagen, allege want of bona fides of plaintiff, and pray for the cancellation of the mortgage in question. As the trial court dismissed the cross-bill for want of proper parties, and defendants have not appealed, we need make no further reference to it. The trial court found the facts to be with defendants and dismissed the bill. Plaintiff appeals.

Defendant Joseph T. Mellon for about 30 years followed the trade of a mechanical engineer. His home was in the city of Chicago. Shortly prior to November 20, 1912, he saw an advertisement in the Daily News advertising a half interest in a saloon business in that city for sale. Answering the advertisement, he met Albert E. Hagen, who was conducting the saloon at 319 South La Salle street. He had several conversations with Hagen before making the purchase. Hagen claimed to him that his reason for wanting to sell was that he wanted a partner to take care of his Chicago place while he was away in connection with business in Hinckley, Ill. Hagen represented that he was doing a business of $60 a day with a profit of over $20 a day; that he had $300 worth of stock on hand; had a long-term lease on the premises at $250 per month; his price for the half interest was $2,250, which he represented was much less than it was worth. Defendant asked to see his books, but Hagen told him he kept no books, but that his cash register showed the daily sales of $60. Hagen referred him to John Schweyer, the president, treasurer, and general manager of the plaintiff company. The record discloses that defendant had a talk with Mr. Schweyer, but the details of the conversation did not appear, as Mr. Schweyer is now deceased and defendants’ testimony, as to conversation with him, is within and prohibited by the statute (section 12856, 5 How. Stat. [2d Ed.] ; 3 Comp. Laws 1915, § 12553). After these various talks with Hagen and the one with Schweyer, defendant purchased the half interest in Hagen’s saloon business, paying $1,000 in cash and giving the mortgage in question. Hagen took him to the office of the attorney for, and director of, plaintiff to have the mortgage drawn. Defendant continued as a partner with Hagen for about four months, putting in about $250 additional to make up his share of the losses. He then quit the business and brought suit for the rescission of the contract and an accounting, which suit is still pending against Hagen. He had, before that time, demanded return of his note and mortgage. Hagen was only away from the saloon two days. So far as this record discloses, he had no business at Hinckley, and we are satisfied that his Hinckley business was a myth used to trap defendant. The business of the saloon only amounted to about $40 a day and did not pay expenses. Hagen did not have a longtime lease, although it is apparent he would be permitted to stay indefinitely if the rent was paid. The rent was $375 per month, which was reduced to $250 per month by subleasing to a cigar stand; how long this sublease was for does not appear. The stock on hand only amounted to $50. Defendant testifies fully in open court to the transaction and is corroborated in some degree. Plaintiff did not call Hagen as a witness, although he was available to it, nor was any attempt made to sustain the good faith of the sale, or to dispute the claim of defendant that he had been defrauded. We are satisfied on this record that an active, flagrant fraud was perpetrated upon defendant resulting in a loss to him of every dollar he put into the enterprise.

Fraud in procuring the note and mortgage having been established, the burden was upon the plaintiff to prove that it was the holder for value before due without notice of infirmities. There is some controversy as to the exact date of the transfer of the mortgage from Hagen to plaintiff, but in any event it was before maturity. It seems to be agreed by the parties that a mortgage executed as security for payment of a note is incidental thereto, and partakes of the negotiability thereof; that the equitable ownership passes by the transfer of the note with all the rights and remedies of an equitable owner of the mortgage. It therefore becomes unimportant for us to determine whether the law of Illinois, where the assignment of the mortgage took place, or the law of this State, controls as to the validity of such assignment, or what the law of that State is; it being the claim of plaintiff that under the laws of Illinois a mortgage may be transferred by indorsement and delivery as was done in this case. In any event, plaintiff is the equitable holder of this mortgage and as such entitled to file this bill.

The defect in the plaintiff’s case lies in the absence of sufficient proof that it was the holder for value, and the total want of proof that it had no notice of the infirmities growing out of the original transaction. There is an allegation in defendants’ pleadings that plaintiff was a creditor of Hagen, but to what extent is not set forth. The only testimony bearing on the question of consideration moving from the plaintiff to Hagen was that of plaintiff’s Chicago attorney, who testified that he had examined the books of the plaintiff, a loose-leaf ledger, and that the amount of this mortgage was credited on Hagen’s account which appeared by the books to have been in excess of the amount credited, and who also testified to what was told him by Hagen and Schweyer as to Hagen’s indebtedness. He did not keep the books, and there was no proof that they were correctly kept. Plaintiff’s bookkeeper was not called, nor was any testimony given by' any one who knew of the transactions between Hagen and plaintiff. Such facts were exclusively within the control of plaintiff, and its failure to call some witness who could testify with reference to its dealings with Hagen, or who could establish the correctness of its books, is entirely unexplained.

The record is barren of any testimony that the plaintiff took without notice of the infirmities, that it took bona fides. The burden was upon the plaintiff after proof of fraud to prove a negative, to prove want of notice. This it has failed to do. It was said by Mr. Justice Hooker, speaking for the court in Thompson v. Village of Mecosta, 127 Mich. 522, 529 (86 N. W. 1044, 1047):

“The only showing that it (the bond) was purchased in the course of business is the fact that the bookkeeping of the bank shows that it was purchased and applied on the Hutchinson Manufacturing Company’s note, but the showing made is as consistent with notice as with a want of it. Why should it, then, be assumed that there was no notice, when the evidence of what the transaction really was is peculiarly within the control of the bank, and the burden of proving the negative is imposed upon the plaintiffs? Want of notice is a substantive fact to be proved, and a want of evidence upon the subject does not prove such fact.”

To the same effect, see Merchants’ National Bank v. Wadsworth, 166 Mich. 528 (131 N. W. 1108); People’s State Bank v. Miller, 185 Mich. 565 (152 N. W. 257); Tilden v. Barnard, 43 Mich. 376 (5 N. W. 420, 38 Am. Rep. 197); Hodson v. Eugene Glass Co., 156 Ill. 397 (40 N. E. 971); Wright v. Brosseau, 73 Ill. 381. The plaintiff having failed to prove that it took without notice and for value, defendants may avail themselves of the defense which could have been made between the original parties.

It is urged, however, by the plaintiff that the defense of fraud here relied upon is not available, that defendant should have made more careful investigation and should not have relied upon the representations of Hagen. It was said by Mr. Justice Carpenter, speaking for the court in Smith v. McDonald, 139 Mich. 225 (102 N. W. 738):

“This contention assumes that the defrauded party owes to the party who defrauded him a duty to use diligence to discover the fraud. There is. no such obligation. One who perpetuates a fraud cannot complain because his victim continues to have a confidence which a more vigilant person would not have. The rule contended for by plaintiff, which requires, the same diligence from all persons, has no application to cases of fraud. If it had, the very persons, vh., the credulous and unwary, ,who are the usual victims, of fraud, would be at a disadvantage, and would often be denied redress.”

Mr. Justice Cooley, speaking for the court in Eaton v. Winnie, 20 Mich. 156 (4 Am. Rep. 377), said:

“Where one assumes to have knowledge upon a subject of which another may well be ignorant, and knowingly makes false statements regarding it upon which the other relies, to his injury, we do not think it lies with him to say that the party who took his word and relied upon it as that of an honest and truthful man was guilty of negligence in so doing, as to be precluded from recovering compensation for the injury which was inflicted upon him under cover of the falsehood. If a party’s ow;n wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his own conduct and untruthful assertions have deprived the other of that quality and produced a false sense of security^’

The courts of Illinois seem to be in accord with this rule. Hicks v. Stevens, 121 Ill. 186 (11 N. W. 241); Linington v. Strong, 107 Ill. 295.

In the instant case, the amount of the receipts and the amount of the profits were facts exclusively within the knowledge of Hagen. Where one makes false representations of material facts, which are exclusively within his knowledge, and the other party relies upon them to his injury, liability for such false representations follows, and it does not lie in the mouth of the party perpetrating such fraud, when called to account, to say that his victim should have been more vigilant, should have been less credulous.

It is urged that defendant should have acted more promptly in rescinding the contract, and the fundamental rule is invoked that one defrauded must act promptly on discovering the fraud in order to rescind the contract. The rule is well recognized that a defrauded party must act with diligence upon learning of the fraud and must restore to the party who defrauded him what he received in order to rescind. Can we say upon this record that defendant has been guilty of such laches, such want of diligence as precludes him from rescinding the contract, in view of the fact that neither Hagen nor plaintiff was in any way injured by the brief space of time that elapsed between the time defendant learned that he had been defrauded, his rescission of the contract, and his institution of the suit for such rescission and an accounting in the lilinois court? We think not. It is apparent that defendant was giving the business a fair trial to determine whether it was as represented by Hagen. Hagen was not placed in any different position by the short delay; the business in no way deteriorated; indeed, defendant put an additional $250 into the business in attempting to make it a success. At the end of less than three months from the time he went into the business, he demanded a return of the mortgage, and in less than four months, he turned over the business to Hagen and brought his suit in the Chicago court. The case of Barron v. Myers, 146 Mich. 510 (109 N. W. 862), is quite in point. Mr. Justice Hooker, speaking for the court, there said:

“The law does not require action to rescind before the defrauded person is reasonably certain that he has been defrauded. If he acts with reasonable promptness thereafter, it is sufficient. The law of laches should be used as a shield and not a sword.”

We find support for the conclusion reached by us on this question in the case of Mellon v. Hagen, 187 Ill. App. 486. This is the case heretofore referred to, brought by this defendant to rescind his contract of purchase of the half interest in the saloon. The bill is not before us, but two lengthy affidavits filed in that suit áre made a part of this record, and from them it is apparent that Hagen was there charged with fraud substantially as alleged in the answer in this case. Hagen demurred, and the trial court sustained his demurrer; on appeal, the demurrer was overruled, and it was held that he had a cause for equitable relief.

But it is not necessary that the contract be rescinded in order to1 afford defendant relief in this proceeding. Carroll v. Rice, Walker’s Ch. 373; Smith v. Werkheiser, 152 Mich. 177 (115 N. W. 964, 15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406). In the first of these cases, the bill was filed to rescind a sale of real estate and the cancellation of certain securities given’ for the purchase price. There had been a delay of four years, during which time the value of the real estate had materially decreased, and it was held that the delay precluded rescission of the contract, but that complainants’ “damages when ascertained may, by a decree of the court, be directed to be indorsed as so much paid on his bond for the purchase money.” In the Smith Case, the contract had been expressly affirmed. Complainants, however, insisted that a fraud had been perpetrated upon them, and that their damages exceeded the amount of a mortgage which one of the defendants was threatening to foreclose. The defendant assignee of the mortgage by way of cross-bill sought the foreclosure of the mortgage. It was found that the assignee of the mortgage was not a holder in good faith, and it was held by this court that, as complainants’ damages exceeded the amount of the mortgage, the prayer of, the bill for a cancellation of the mortgage should be granted, following the Carroll and other cases cited.

In the instant case, we are satisfied that defendant’s damages, growing out of the fraud perpetrated on him by Hagen, exceed the amount of the mortgage in question.

For the reasons given, the decree of the court below is affirmed, with costs to defendants.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


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    B. F. GOODRICH RUBBER CO. v. SEWELL CUSHION WHEEL CO.
    1. Trial — Striking out Testimony — Failure to Object — Cross-Examination.
    A motion to strike out testimony is too late where testimony for defendant on direct examination is admitted without objection by plaintiff’s counsel and the witness is fully cross-examined, re-examined by defendant, and again cross-examined, and a motion to strike out the evidence is not made until both parties have rested, as it is not permissible to experiment as to testimony and then have it stricken out because disadvantageous.
    2. Evidence — Expert Witnesses.
    In an action by the seller to recover for the purchase price of rubber cushions designed for automobile wheels, where the rubber originally sent was not up to the requisite standard and was returned to be recured, and it was defendant’s contention that the agreement was that the rubber, when recured, should be up to the standard of rubber previously sold by plaintiff to defendant, it was competent to show that the recured rubber was not up to the standard of rubber previously sold.
    3. Same — Weight of Evidence — Question for Jury.
    As the jury are the triers of fact, it is for them to determine what weight and credit is to be given to the testimony of a witness, where parts of it are inconsistent.
    4. Sales — Evidence—Question for Jury.
    A case for the jury was presented, in an action by the seller to recover the purchase price of rubber cushions designed for automobile wheels, where the rubber as originally received was unsatisfactory and was returned for the purpose of recuring it and it was plaintiff’s contention that the agreement under which the rubber was recured' amounted to a sale by sample, that it submitted a sample of the recured rubber to defendant, and defendant approved it, that the rubber was recured and delivered to the defendant, and that it corresponded with the sample, and it was defendant’s contention that the recured rubber was to be as good as that previously sold to it, and there was testimony tending to sustain both contentions, and there was also evidence tending to show that the sample of recured rubber was as good as that previously furnished, and that the recured rubber was not.
    5. Trial — Argument of Counsel — Harmless Error.
    Argument of counsel is not the proper subject of complaint where the objection by the attorney for the adverse party is sustained, and the argument proceeds no further, and no instructions are asked by the attorney for the adverse party to disregard the argument.
    Error to Wayne; Codd, J.
    Submitted April 13, 1917.
    (Docket No. 8.)
    Decided May 31, 1917.
    Assumpsit by the B. F. Goodrich Rubber Company against the Sewell Cushion Wheel Company for goods sold and delivered. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Clark, Emmons, Bryant & Klein, for appellant.

      Ralph S. Moore, for appellee.
    Plaintiff and its predecessors for a number of years manufactured and sold to defendant rubber cushions, used by it in a specially designed and patented automobile wheel, used principally on automobile trucks. The cushions are made of the best grade rubber that could be procured and are sold on a five-year guaranty. In October, 1913, defendant gave an order for some of these cushions, and during the following months shipments to the amount of 979 pounds were made. It is conceded that the rubber was undercured. Plaintiff was notified and sent its representative to Detroit. Defendant’s president and general manager, Mr. Sewell, testified:
    “I showed him some of the defective rubber. He asked for samples, or a piece of it, and wanted to take it back to the factory to show them the condition of it. They notified us that the rubber was undercured, and that they could recure it and ship it back to us as good as new. We returned the whole bunch .to them. There was in the neighborhood of 800 or 900 pounds. I did not see any other member or official of the plaintiff company until after they had submitted a sample of that same rubber which they claimed had been given more heat, or cure. I talked at that time with Mr. Noble and Mr. McPeek. I examined the sample we received very carefully, and as far as the sample was concerned we could find no defect from the good rubber we had received before. I talked with Mr. Noble and told him, if they could recure this rubber, and make it as good as his previous rubber, that we would accept it again. He assured me that they thought his company'would do so.”
    After the rubber had* been recured by plaintiff, it was returned to defendant. It is the claim of the defendant that upon examination the rubber was. found to be very brittle on the outside, might be broken, and would not stand a stretch; that its tensile strength was only about two-thirds that of the rubber furnished by plaintiff before — in fact, it was not the kind of rubber it had been using, and defendant could not afford to take the chances of using it in its wheels which went to all parts of the country, with its guaranty of five years’ service. Defendant refused to pay for the rubber and notified plaintiff that it was held subject to its order. Negotiations followed which were fruitless, and this suit was brought, resulting in a verdict and judgment for defendant, and plaintiff brings the case here for review.
   Fellows, J.

(after stating the facts). Three grounds are urged by plaintiff in its. brief for a reversal of the judgment, viz.:

(1) That the court erred in refusing to strike out the testimony of the witness Robinson.

(2) That the court erred in refusing to direct a verdict for plaintiff.

(3) That there was prejudicial argument by defendant’s counsel.

1. The defendant called as a witness F. W. Robinson, a chemist, who testified that he had analyzed and made tests of the rubber which had been recured by plaintiff, and compared it with rubber received from plaintiff about the same time, which had not been re-cured, and gave the results of such analysis and tests. His testimony was received without objection by plaintiff’s counsel, who cross-examined him fully. At the close of the case, counsel moved to strike out the testimony of this witness. Error is assigned on the refusal of the court to grant this motion. The objection came too late. The plaintiff could not be permitted to lie by and experiment upon the testimony and ascertain what might come of it; for benefit or disadvantage, and if it turns out disadvantageous exclude it upon a motion to strike out. Not only was the testimony on direct examination admitted without objection, but counsel fully cross-examined the witness, defendant re-examined him, and plaintiff again cross-examined him, and not until after other witnesses had been called and examined and both sides had rested was the motion to strike out the testimony made. Under these circumstances, plaintiff had no right to the exclusion of the testimony. McWilliams v. Railway Co., 146 Mich. 216 (109 N. W. 272); Farmers’, etc., Nat. Bank v. Greene, 74 Fed. 439 (20 C. C. A. 500); Dugger v. McKesson, 100 N. C. 1 (6 S. E. 746); King v. Haney, 46 Cal. 560 (13 Am. Rep. 217); East Tennessee, etc., R. Co. v. Turvaville, 97 Ala. 122 (12 South. 63).

But we think the testimony of the witness Robinson was material to the issue. It was the claim of the defendant, as we shall presently see, that the rubber was taken to Akron to be recured, with the understanding and agreement that when recured it should be up to the standard of rubber theretofore furnished to defendant by the plaintiff. There was testimony to sustain this claim, as we shall discuss under the next objection, and, such being the case, it was competent to show that the recured rubber was not up to the standard of the rubber before then sold by plaintiff to defendant.

2. It was the claim of the plaintiff that the arrangements under which the rubber was recured amounted to a sale by sample; that it submitted a sample of the recured rubber to defendant, and defendant approved the sample; that the rubber was recured and redelivered to defendant; and that it corresponded to the sample. Plaintiff’s testimony sustained this theory. The defendant, however, did not admit that this was the arrangement, but, on the contrary, it insisted that it was agreed that the recured rubber was to be as good as that previously furnished. It is necessary to quote but one sentence from Mr. Sewell’s testimony to show that defendant’s claim was supported by proof. He said:

“I talked with Mr. Noble and told him if they could recure this rubber and make it as good as his previous rubber that we would accept it again.”

There was other testimony coming from witnesses, and found in the correspondence, supporting this theory. There was also testimony tending to show that the sample of recured rubber was as good as that previously furnished, and that the recured rubber was not. We also find, in the testimony of defendant’s production manager, the following testimony:

“Q. Did you find the recured rubber the same as the sample?
“A. No, sir.”

While other portions of the testimony of this witness may be said to be inconsistent with this answer, the jury were the triers of the facts, and it was for them to determine what weight and credit should be given this testimony. Lonier v. Savings Bank, 153 Mich. 253 (116 N. W. 1088). Clearly, a case was made for the jury.

3. During the argument of the case by defendant’s counsel, objection was made to the line of argument he was pursuing, and the objection was promptly sustained, and the argument proceeded no further. We are not prepared to hold that the argument of defendant’s counsel, at the time of the objection, was improper. It is not necessary for us to determine that question. Plaintiff’s counsel was evidently satisfied With the course pursued and asked no instructions from the court to disregard the argument. Samberg v. Knights of Maccabees, 158 Mich. 568 (123 N. W. 25, 133 Am. St. Rep. 396).

The judgment is affirmed, with costs to defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.