author:
Brooke, J.
      Moore, J.

text:
    NELSON GRAIN CO. v. ANN ARBOR RAILROAD CO.
    1. Carriers — Bill op Lading — Evidence — Consignee—Contracts.
    An original order bill of lading delivered by defendant carrier to the consignor of beans reciting that the property was received from the owners in good order consigned to B. & B. at a designated station, concluding as follows: “ B. & B. shippers, A. B. Sell, agent, per B. A.; ” indicated conclusively that B. & B. were the shippers and that the shipments were made to their order: being unambiguous, the instrument could not be contradicted by parol evidence showing that plaintiff, a corporation, was the owner and shipper, and the control of the shipment was reserved.
    2. Same — Freight—Delivery.
    Although the consignees procured the delivery of the shipment by forging a bill of lading, and using the false one instead of the original, which plaintiff forwarded attached to a sight draft, the carrier could not be held for delivering the property on the order of the consignees who were the apparent and presumptive owners, although the original contained a clause as follows, ‘ ‘ The surrender of this original order bill of lading, properly indorsed, shall be required before the delivery of the property.”
    3. Same — Presumptions.
    The consignee named in the bill of lading is presumptively the owner of the goods and must be treated by the carrier as the absolute owner until he has notice to the contrary, so that delivery to him will discharge the carrier. If the owner desires to retain control of the goods he must notify the carrier of such purpose.
    A Same.
    On the face of the receipt, defendant was entitled to presume, if it had any notice of plaintiff’s claim to be the owner, that the consideration had been paid and title passed to the consignee named, on delivery to the defendant.
    Moore and Bird, JJ., dissenting.
    Error to Gratiot; Searl, J.
    Submitted October 16, 1912.
    (Docket No. 91.)
    Decided March 20, 1913.
    Rehearing denied June 2, 1913.
    Case by the Nelson Grain Company against the Ann Arbor Railroad Company for the wrongful delivery of goods shipped by plaintiff. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Alexander L. Smith, for appellant.

      George P. Stone, for appellee.
    This case was tried by the court without a jury. His findings of fact and law follow:
    “ Findings of Fact.
    “ (1) That on the 1st and 6 th days of December, 1911, the defendant was and is still a common carrier of goods and engaged in interstate commerce business; and that the plaintiff at the time aforesaid was and still is a duly organized corporation engaged in business at Ithaca, Mich., in buying, selling, and shipping farm produce, and owns and operates an elevator at that place.
    “ (2) That on the 1st day of December, 1911, the plaintiff was the owner of a car of beans consisting of 250 bags of beans and bargained and sold the same to Botsford & Barrett, commission merchants of Detroit, Mich., to be shipped to Lynchburg, Va., and notify Davidson Bros., there; for which Botsford & Barrett were to pay to the plaintiff the sum of $1,498.75. That the plaintiff, as the owner of said beans, requested the defendant to place a car at its elevator for the purpose of loading such beans, and the defendant did so, and the plaintiff loaded the same. That after loading the car with such beans the plaintiff, as the owner of such beans, delivered the same to the defendant as such common carrier, to be carried by the defendant and its connecting carriers to Lynchburg, Va. Upon receiving such car of beans of the plaintiff, the defendant executed and delivered to the plaintiff, as the owner of such beans, the order bill of lading that was introduced as evidence in this case and marked ‘ Exhibit A,’ and which order bill of lading is printed on yellow paper.
    “ (3) That immediately upon receiving such bill of lading the plaintiff made a sight draft on Botsford & Barrett for $1,498.75, the same being Exhibit B in evidence in this case, and attached the same to the bill of lading and caused said bill of lading with such draft attached to be transmitted to a bank in Detroit, Mich., for collection. Said draft was not paid, and has never been paid, or any part thereof, and the same with the original bill of lading attached was returned to the plaintiff and said bill of lading and draft at all times since have been, and now are, in the possession of the plaintiff.
    “ (4) That on the 6th day of December, 1911, the plaintiff was the owner of another car load of beans consisting of 250 bags of beans and bargained and sold the same to Botsford & Barrett, aforesaid, to be shipped to Paris, Ky., and notify Tower Grocery Company, there; for which beans Botsford & Barrett were to pay the plaintiff the sum of $1,498.75. That the plaintiff, as the owner of said beans, requested the defendant to place a car at plaintiff’s elevator for the purpose of loading said beans, and the defendant did so, and the plaintiff loaded the same. That after the loading of the car with such beans, the plaintiff, as the owner of such beans, delivered the same to the defendant as such common carrier to be carried by the defendant and its connecting carriers to Paris, Ky.; and upon receiving such car of beans of the plaintiff, the defendant executed and delivered to the plaintiff as the owner of such beans the order bill of lading that was introduced as evidence in this case and marked e Exhibit C,’ and which order bill of lading is printed on yellow paper.
    “ (5) That immediately upon receiving such bill of lading the plaintiff made a draft on Botsford & Barrett payable on arrival of car, being ‘Exhibit A’ herein, for $1,498.75, and attached the same to the said bill of lading and caused said bill of lading with such draft attached to be transmitted to a bank in Detroit, Mich., for collection. Said draft was not paid and has never been paid, or any part thereof, and the same with the original bill of lading attached was returned to the plaintiff, and said bill of lading and draft at all times since have been and now are in the possession of the plaintiff.
    “ (6) That said Botsford & Barrett, shortly after said 1st day of December, 1911, prepared or caused to be prepared a false and forged bill of lading purporting to cover said shipment of December 1st, and which is introduced in evidence and marked ‘Exhibit E,’ and falsely and fraudulently caused the same to be signed in the name of the defendant’s agent at Ithaca, Mich., and thereupon said Botsford & Barrett indorsed said false and fraudulent bill of lading in blank, and attached the same to a draft drawn by them upon the party to be notified, as aforesaid, at the destination of said shipment. That the said party upon whom said draft was drawn paid the same, and thus obtained possession of said false and fraudulent bill of lading indorsed, as aforesaid, and surrendered the same to the last of the connecting’ carriers over whose lines said beans were transported, and thereupon said last connecting carrier, on or about the 10th day of December, 1911, delivered said beans to said party at Lynchburg, Va.
    “ (7) That said Botsford & Barrett, shortly after said 6th day of December, 1911, prepared or caused to be prepared a false and forged bill of lading purporting to cover said shipment of December 6th, which is introduced in evidence and marked ‘Exhibit F,’ and falsely and fraudulently caused the same to be signed in the name of the defendant’s agent at Ithaca, Mich., and thereupon said Botsford & Barrett indorsed said false and fraudulent bill of lading in blank and attached the same to a draft drawn by them on the party to be notified, as aforesaid, at the destination of said shipment. That said party upon whom said draft was drawn paid the same and thus obtained possession of said false and fraudulent bill of lading indorsed, as aforesaid, and surrendered the same to the last of the connecting carriers, over whose lines said beans were transported, and thereupon said last connecting carrier, on the 16th day of December, 1911, delivered said beans to said party at Paris, Ky.

      “ (8) The value of each of said car loads of beans, aforesaid, exclusive of freight at the time and place they were so delivered by the last connecting carrier, was $1,498.75.
    “ (9) The plaintiff has never received from any source anything whatever for either shipment of said beans, and the same has been a total loss to the plaintiff of the full value thereof.
    “ Findings of Law.
    “ (1) The defendant in this case, as the initial carrier, is liable to the plaintiff, as the owner of the goods shipped, in this form of action, for a misdelivery of the goods by the delivering carrier.
    “ (2) A bill of lading has a dual office; it is both a receipt for the goods shipped, and a contract to carry and deliver them upon the terms specified in it to the designated consignees. As a receipt it is susceptible of explanation by oral extrinsic evidence; and from such evidence in this case I find that the defendant received the goods from the plaintiff, and that the plaintiff is, and was intended by the plaintiff to be, the person designated in the bills of lading by the word ‘owners.’
    “ (3) I find that under the bills of lading executed and delivered by the defendant to the plaintiff it became and was the duty of the defendant and its connecting carriers not to deliver the goods to any person except upon the production and surrender of the original bills of lading properly indorsed, and that good faith and want of negligence on the part of the carrier is not a defense to any action for the misdelivery by the carrier of the goods intrusted to its care.
    “(4) I find that the delivery of the beans in question upon the forged bills of lading without requiring the production of the original bills of lading was an unlawful conversion of the goods and rendered the defendant liable in this action to the plaintiff for the value of the same.
    “ (5) I find that the plaintiff is entitled to a judgment against the defendant for the sum of $2,997.50, together with interest thereon at 5 per cent, since December 13, 1911, that being the average date of delivery for computing interest on the value of both car loads, making a total sum of $3,076.12.
    “ Judgment is rendered and may be entered in accordance with these findings, and as of this date.”

      No criticism of the findings of fact is made by defendant except as to the second and fourth findings. As to those, it is the claim of defendant that there was no evidence to support the conclusion that plaintiff, “as the owner of said beans,” delivered the same to the.defendant or that defendant delivered the bills of lading to plaintiff “as the owner” of the beans. Defendant contends that the only evidence there is shows the contrary, viz., that the defendant received the beans from Botsford & Barrett and issued its bill of lading to Botsford & Barrett as the owners of the beans.
    The bill of lading covering the first shipment was as follows:
    Ann Arbor Railroad Company.
    Shipper’s No. A — 1912.
    Order Bill of Lading — Original.
    Received, subject to the classifications and tariffs in effect on the date of issue of this original bill of lading.
    At Ithaca, Mich., 12-1, 1911, from owners the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned and destined as indicated below, which said company agrees to carry to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted for himself and his assigns.
    The surrender of this original order bill of lading, properly indorsed, shall be required before the delivery of the property. Inspection of property covered by this bill of lading will not be permitted unless provided by law or unless permission is indorsed on this original bill of lading or given in writing by the shipper.
    The rate of freight from Ithaca, Mich., to Lynchburg, Va., is in cents per 100 lbs.

    Consigned to order of Botsford & Barrett.
    Destination, Lynchburg, State of Virginia.
    Notify Davidson Bros., at same.
    Route, H. V. Kanawha Desp. Car initial, M. & G. R. Car No. 561.

      No. Packages.
    Description of Articles and Special Marks.
    Weight, (Subject to Correction. )
    Bags Beans 41250 250
    Sacks Beans
    Sacks Feed
    Sacks Potatoes
    Bags Clover Seed
    Bales Bags
    Car Wheat
    Car Oats
    Car Rye
    Car Hay
    Ann Arbor R. R., Dec. 1, 1911.
    Ithaca, Mich.
    & Barrett, Shippers. (1) Botseord
    A. B. Seel, Agent, per B. A.
    The bill of lading covering the second shipment was identical with the first, except that the destination was: "Paris, State of Kentucky. Notify Power Gro. Co., at same.” And the shipper was designated as: “Botsford &: Barrett, Shipper, per Nelson Grain Co.” In the case of both shipments delivery was made to the consignee, named in the bill of lading upon the genuine order of Botsford & Barrett, indorsed upon forged bills of lading.
   Brooke, J.

(after stating the facts). The bills of lading here considered are entirely unambiguous and show conclusively that Botsford & Barrett were the shippers and that the shipments were made to their order.

The evidence of Mr. Nelson, president and manager of the plaintiff corporation, does not in our opinion tend to contradict the bills of lading and (they being unambiguous) if it did so tend it would not be admissible under the authority of Sturges v. Railway Co., 166 Mich. 231 (181 N. W. 706).

The learned circuit judge in rendering judgment for plaintiff seems to have relied upon the case of Forbes v. Railroad Co., 133 Mass. 154. In that case Gallup, Clark & Co. consigned a shipment of corn to Boston to their own order. They sent the bill of lading indorsed with draft attached for the value of the corn to Foster & Co. at Boston. Foster & Co. paid the draft and immediately indorsed the draft and bill of lading to Forbes for an advance to the full amount of the draft. Forbes thereafter held the draft and bill of lading duly indorsed. Some weeks later the defendant carrier delivered the corn for export upon the order of Foster & Co. Foster & Co. did not produce the bill of lading, but represented that it was in their possession. The court held that by the transfer from Foster & Co. Forbes took title as purchaser of the corn, and could maintain the action, in the absence of laches, upon proving conversion by defendant. It was further held:

_ “ It is settled that any misdelivery of property by a carrier or warehouseman to a person unauthorized by the owner or person to whom the carrier or warehouseman is bound by his contract to deliver it is of itself a conversion, which renders the bailee liable in an action of tort in the nature of trover, without regard to the question of his due care or negligence. Hall v, Railroad Corporation, 14 Allen [Mass.], 439 [92 Am. Dec. 783].”

We are unable to see the applicability of the Forbes Case to the case at bar. Here there is no innocent holder for full value of a properly indorsed bill of lading, the failure to demand production of which led the carrier to make delivery of the consignment to one not entitled to receive it. Here the delivery was made to the consignees named in the bills of lading and upon the order of the shipper exactly as, by the terms of the written instrument, the carrier was instructed. The learned circuit judge says:

What was done by Botsford & Barrett and the plaintiff amounted to an assignment of the bill of lading to the plaintiff. Even if it be conceded that Botsford & Barrett were the owners mentioned in the bill of lading, yet they had the right to assign the bill of lading to the plaintiff, and had they been present at Ithaca, and made the shipment personally, and then made a regular assignment to the plaintiff, no one would contend that the railroad would be protected in making delivery upon the order of Bots-ford & Barrett, even though it was a genuine order, unless it was accompanied by the original bill of lading.”

Touching these views it is sufficient to say that Botsford & Barrett were not, so far as the record discloses, present in Ithaca, that they did not make the shipment personally, and that they did not make any formal assignment of the bill of lading to the plaintiff. The conclusion, that what was done between Botsford & Barrett and plaintiff amounted to an assignment of the bill of lading to the plaintiff, is, we think, wholly unwarranted by the disclosed facts. The record contains no hint that the defendant knew or had cause to believe that the plaintiff had retained any interest or right of property in the beans. The bill of lading indicated the contrary. An examination of that paper shows that the plaintiff was an utter stranger to the transaction, except that as to the last bill its name appears beneath that of Botsford & Barrett, Shipper, with the prefix “per.” This can have but one meaning, viz., that the beans were shipped by Botsford & Barrett; the plaintiff acting for them in the transaction. Assuming that defendant knew of plaintiff’s ownership of the beans prior to the moment of delivery, the terms of the bill of lading would indicate a sale to Bots-ford & Barrett and an intent to vest them with the title and right of possession thereto.

The bills of lading here in question contained the following language:

“The surrender of this original bill of lading, properly indorsed, shall be required before the delivery of the property.”

It being conceded by defendant that delivery of the beans was made without the surrender of the original bill of lading, it becomes pertinent to inquire what effect these words have upon the controversy.

Hutchinson on Carriers (3d Ed.), vol. 1, § 177, in his text, says:

“The carrier takes the risk of a delivery to the person entitled to the goods by the bill of lading and its indorsements. The consignee named in the bill of lading is presumptively the owner of the goods and must be treated by the carrier as the absolute owner until he has had notice to the contrary; and a delivery to him without such notice will discharge the carrier. Thus, if the consignor would for any reason retain the ownership or control of the goods, he must notify the carrier of such fact; for otherwise the presumption that the consignee named is the rightful owner and entitled to their possession will prevail as against any undisclosed intention which the consignor may have had to the contrary.”

At section 181, vol. 1, the same author says:

“But while the carrier takes the risk of making delivery to the person entitled to the goods by the bill of lading and its indorsements, and should, therefore, be careful to require the person demanding the goods, when such person is another than the consignee, to produce the bill of lading properly indorsed, he will fully discharge his duty in making a delivery without requiring the bill of lading to be presented if delivery is made to the person who is lawfully entitled to the goods. The right of the carrier to demand the presentation of the bill of lading is a precaution of which he may avail himself, for the purpose of avoiding delivery to the wrong person, but which, if he sees fit, he may dispense with; and if delivery is made to the person vested with the right to receive the goods, the carrier will have performed his duty. If therefore the consignee should direct the carrier to make delivery to a third person to whom he has transferred title, and delivery is made in accordance with such directions without requiring the bill of lading to be produced, the failure of the carrier to require its production will place him under no responsibility to a bona fide holder who, after such delivery, has taken the bill of lading from the consignee. And although a bill of lading providing for a delivery to the consignor or his order contains an express provision that the carrier shall require its surrender or production before making a delivery of the goods, such requirement, it is said, will be considered as having been inserted for the benefit of the carrier, and, as between himself and the consignor, cannot subject the carrier to liability for failing to require the production of the bill of lading on making delivery to one to whom the consignor has ordered that the goods shall be delivered.”

An examination of the authorities cited by the writer will show that the text is amply supported.

In 4 Elliott on Railroads (2d Ed.), § 1523, it is said:

, “The rule in regard to the person to whom delivery must be made is very strict. It must be made to the right person, and it seems that neither the fraud nor imposition of any one else nor mistake on the part of the carrier will excuse it from liability, if it delivers the goods to the wrong person. The right person is, ordinarily, the consignee or his authorized agent. But if the carrier delivers to any one, even to the consignee, without the production of the bill of lading, it runs the risk of having to show a delivery in accordance with the terms thereof, and, where a vendor ships goods and takes a bill of lading in his own name or to his order, the carrier cannot safely deliver the goods to any one else unless the bill is indorsed or transferred by him and produced by the person to whom they are delivered.”

Further, in a note to section 1524, the author says:

“That a carrier may be protected in a proper case even if it does not require production of the bill of lading, if it shows it delivered to the right party, see (citing many cases).”

The case of Chicago Packing, etc., Co. v. Railway Co., 103 Ga. 140 (29 S. E. 698, 40 L. R. A. 367), is instructive. The bills of lading in that case contained the same provision that the goods should not be delivered without surrender thereof. They were indorsed and signed by the plaintiff as follows: “Deliver to Hobbs & Tucker, or order, for collection.” Tucker ordered delivery to one Ragan in the following terms:

“E. N. Clark;, Agent: Let N. L. Ragan have car meat on dray track, and I will be responsible for B — L. May 18, 1893. A. W. Tucker.”

The carrier made delivery to Ragan relying upon this order without the surrender of the original bill of lading. The shipper thereupon sued . the carrier for damages caused by a wrongful delivery. The court said:

“If a natural person consigned goods to his own order under a bill of lading which provided that it should be surrendered before delivery could be made, and called in person upon the carrier’s agent at the point of destination, demanded a delivery of the goods, and thereupon received the same, it certainly could not be questioned that, as between him and the carrier, such delivery would be good, and would free the carrier from further liability to him, although the bill of lading may not have been produced and surrendered in accordance with the stipulations therein contained. While in such a case the carrier might not, aa against one who had in good faith and in the due course of business obtained the bill of lading properly indorsed, be protected by a delivery to the original consignor, surely the latter would have no cause of complaint against the carrier. If such a consignor could thus obtain a delivery of the goods to himself in person, what difference, in principle, would it make if, instead of doing this, he, by a written order, directed delivery to another, who obtained the goods upon such order without producing and surrendering the bill of lading. In either case, looking at the transaction with reference only to the consignor and the carrier, the latter would have done all that the former had any right to require of it. In other words, the stipulation in such a bill of lading requiring its surrender upon delivery of the goods is for the benefit of the carrier, and not that of the consignor.”

See, also, Gates v. Railroad Co., 42 Neb. 379 (60 N. W. 583); Nebraska Meal Mills v. Railway Co., 64 Ark. 169 (41 S. W. 810, 38 L. R. A. 358, 62 Am. St. Rep. 183); 6 Cyc. p. 472, and cases cited in note 49.

Whether the stipulation in the bill of lading that surrender thereof shall be required before delivery is considered to be for the benefit of the carrier or the shipper would seem in this case to make no difference, for the plaintiff was not the shipper. Being the owner of the property at the time of delivery to the carrier, plaintiff chose to represent by the contract negotiated with the carrier that Botsford & Barrett were the shippers thereof, to whose order delivery should be made, at the same time neglecting to disclose to the carrier that it (the plaintiff) desired or intended to retain any control over the shipment for its own protection. Defendant had no knowledge or notice of plaintiff’s secret intention. For aught defendant knew, Botsford & Barrett might have paid plaintiff before the shipment was made. Indeed, the terms of the bill of lading negotiated by plaintiff plainly indicated that such was the fact. We cannot escape the conclusion that this loss has come to plaintiff (if a loss there be through the financial inability of Botsford & Barrett) by reason of its own carelessness in failing to make the shipments to its own order, or in some other manner notifying the defendant that it desired to retain its title to the shipments until paid for the same. Having made delivery of the shipments to the parties named in the bills of lading upon the order of Botsford & Barrett as directed in the bills, we think the defendant should be held to have performed its full duty in the premises.

Defendant requested the court to make findings of law as follows:

“Under the evidence in this case, when defendant received the beans in controversy and issued its bills of lading therefor, and the same were accepted by plaintiff, the beans became (as between the plaintiff and defendant) the property of Botsford & Barrett, and the plaintiff cannot complain of a delivery of the same by the defendant or its connecting carrier to or on the order of Botsford & Barrett.
“ The fact that the original bills of lading were not surrendered to the delivering carrier at the time of the delivery of the beans will not make the defendant liable, for the reason that the beans were delivered on the order of Bots-ford & Barrett and the evidence does not show any notice to defendant that the title to the beans was not to pass to Botsford & Barrett, or that the same were not to be delivered on their order.”

These findings should have been made.

The judgment is reversed, and there will be no new trial.

Steere, C. J., and McAlvay, Kuhn, Ostrander, and Stone, JJ., concurred with Brooke, J.

Moore, J.

(dissenting). I cannot agree with the conclusion reached by Justice Brooke. I do not agree with him that the bill of lading is unambiguous and states the ownership of the property described therein. It is true that it says it was received from the owners, but it nowhere states who the owners were at that time, and I think the record justifies the second and fourth findings of fact made by the circuit judge.

I reach the conclusion from this record that the plaintiff was the owner of the beans in question, and sold them to Botsford & Barrett, and consented the beans might be consigned to them, and shipped over the road of the defendant, but insisted that the original order bill of lading must be produced, properly indorsed, before the defendant was authorized to deliver the property.

The defendant contracted to require the surrender of the order bill of lading properly indorsed before it would deliver the beans. This it did not do. Before the consignees could get the original order bill of lading, they would have to either pay the plaintiff or make some arrangement which would be satisfactory to it. By making the contract in question the plaintiff had a right to suppose that defendant would not deliver the property until the conditions named in the contract had been performed. The defendant having violated its contract in this regard, I think it was liable to the plaintiff for the injury done to it by this violation.

It follows from what I have stated that I think the judgment of the court below should be affirmed.

Bird, J., concurred with Moore, J.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    YEITER v. CAMPAU.
    1. Pleading —Assumpsit—Common Counts —Bill op Particulars — Sales.
    Under a declaration on the common counts and a bill of particulars notifying defendant that plaintiff claimed the purchase price of apple butter sold and delivered to defendant, plaintiff could not recover manufacturing expenses for taking back the butter and working it over for resale at the request of defendant, who had never received a statement of the amount claimed; testimony tending to prove the claim should have been excluded until the true issue was presented by amending the bill of particulars.
    2. Sales — Acceptance—Statute op Frauds.
    To satisfy the statute of frauds, mere words indicating acceptance are insufficient, some unequivocal act of the vendee is necessary to a valid contract of sale, if there is not written evidence and no part of the price was paid.
    3. Same.
    Where defendant was the cashier of a bank that had loaned money to plaintiffs to use in their business and plaintiffs contended that defendant bought a quantity of their product on his own account, and, finding he could not sell it, ordered them to store it in a warehouse specified by him, afterwards requesting them to work it over and sell it, evidence that he paid checks drawn on the bank for supplies used in manufacturing the butter at a time when he was requiring them to use due bills in payment of other purchases; that he almost daily visited their manufactory and urged them to hurry the work, saying he would stand back of them; that he procured a place to store the product (the sole evidence, being proof of what he said to plaintiffs); that he was present at numerous occasions when it was delivered for storage, that he sent samples of the apple butter to the prospective purchasers and tried to make sales after it was stored; directed plaintiffs to remanufacture and sell the butter, and also put off the time of settlement upon the pretext that he would settle it all up when the entire lot was disposed of, were, except his presence at the mill, either mere words or equivocal conduct because of his relation to the creditor bank: it was for the jury to determine whether he had unequivocally accepted the butter and they should have been instructed that such acceptance was neoessary to a valid contract.
    Error to Kent; McDonald, J.
    Submitted November 13, 1912.
    (Docket No. 107.)
    Decided March 20, 1913.
    Assumpsit by William Yeiter and Clarence W. Yeiter against Frank E. Campau for goods sold and delivered. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Norris, McPherson & Harrington {Butterfield & Keeney, of counsel), for appellant.

      Geo. E. & M. A. Nichols, for appellees.
    This action is in assumpsit. Plaintiffs, in their bill of particulars, state that their demand is for
    “ 80,000 pounds of apple butter,, at 6 cents per pound, heretofore sold and delivered by the said plaintiffs to the said defendant, amounting to $4,800, and no part of which said sum has been paid by the said defendant to the said plaintiffs.”
    The plea is the general issue. Plaintiffs recovered a judgment for $3,852.89.
    For several years prior to November, 1907, plaintiffs were engaged in the manufacture of cider, jelly, apple butter, etc., at the village of Alto, Mich. The defendant is the cashier of the Farmers’ State Bank of Alto. The plaintiffs did business with the bank of which defendant was cashier, and on November 1, 1907, were indebted to the bank on certain promissory notes to the amount of about $3,200. It was the claim of plaintiffs, and they introduced testimony tending to support it, that at about that time the panic of that year affected their business, and they determined to work up the apples they then had on hand into vinegar stock; that defendant then told them he had an order for two car loads of apple butter, and asked them if they could get it out; that they replied that they could; and that thereupon he agreed to take said apple butter and pay therefor at the rate of 6 cents per pound. They claim that during the month of November they manufactured apple butter under the contract; that when they had a car load ready for shipment they were advised by defendant that his parties were not yet ready to receive it, and that they should store the manufactured product in the warehouse cellar of Bush & O’Hara.
    Plaintiffs claim that, following this instruction of defendant, they stored in said warehouse about 2,700 pails of apple butter, retaining the balance of defendant’s order in the cider mill and barn. They further claim that in March, 1908, defendant told them that his parties refused to take the apple butter; that he inquired if it would keep; and, being advised that plaintiffs believed it would, “he said if it would keep we would try and see what we could do with it the next year.”
    In the fall of 1908 plaintiffs claim that defendant asked them what they could do with the apple butter, and was advised by them that they did not know, unless it was worked over; that they would try it; that thereafter they did work over a portion of it, and disposed of some 800 or 900 pails that fall. In working over the product they claim to have expended for labor and material #606.65, and to have sold the worked over butter for $1,489.92, leaving a balance of $883.27 as the net result of that fall’s operations. The next fall (1909) plaintiffs claim that defendant—
    “Asked me what we could do with it, and I told him I didn’t know whether we could work it over or not; I would have to examine it, and I didn’t want to work it over, and him and my brother got together and kind of urged me into working it over, and we worked it over the next fall.”
    As a result of the operation in 1909 plaintiffs sold $1,-705.87 worth of the worked-over product, and expended for labor and material $1,265.91, leaving a balance of $439.96.
    All the apple butter sold during the years 1908 and 1909 was sold by plaintiffs in their own names, and the money received therefor was deposited in the bank to their own credit.
    During the year 1908 plaintiffs borrowed no money from the Alto bank, but from time to time renewed the notes which they had already made. To carry on their operations in the fall of 1909, plaintiffs borrowed from the bank the further sum of $1,864, a portion of which was used to work over and market the apple butter in question. For this money plaintiffs gave to the bank demand notes during October-and November, 1909, and on December 29, 1909, they were consolidated with the amount already owed by plaintiffs, and a new note for $5,416.80 was given. This note was renewed May 17, 1910, to the amount of $4,771.
    Plaintiffs thereafter made payments thereon down to May 5, 1911, at which time there appears to have been a balance due upon the note of about $4,065. The officials of the bank endeavored to get from plaintiffs security by way of mortgage. This security plaintiffs refused to give, and the bank brought suit upon the claim.
    Plaintiffs filed their declaration against defendant in the case at bar on May 25, 1911. No statement of the account between plaintiffs and defendant, showing plaintiffs’ dealings with the apple butter, was rendered to defendant. Upon the trial such a statement was produced, which plaintiffs testified had been made up within a week.
    Defendant denied that he had made any contract with plaintiffs to purchase the apple butter in question, denied that he had arranged for its storage in the warehouse of Bush & O’Hara, or instructed plaintiffs to store it there, denied that he had ever accepted the product, or any part thereof, and asserted that he had never exercised any dominion or control over it. His evidence was supported by that of Bush & O’Hara, the warehousemen. O’Hara testified that the arrangements for storage were made by one of the plaintiffs (Clarence Yeiter), and not by defendant; that plaintiffs removed the apple butter from the warehouse in the fall of 1908 and in the fall of 1909, getting the key from him for that purpose; and that defendant never came to the warehouse to inspect the product. He testified further that neither of the plaintiffs ever gave him any directions to allow defendant to take the butter. J ames A. Bush, the other partner in the warehouse, gave testimony to the same effect.
    Defendant and appellant presents his case under the following heads:
    “(1) There could be no recovery under the pleadings.
    “ (2) There was error of the trial judge in not permitting the jury to disregard the testimony in regard to the alleged expense of remaking and selling the apple butter.
    “(8) There was no receipt and acceptance of the goods by the defendant sufficient to satisfy the statute of frauds: (а) The alleged receipt and acceptance is based solely upon alleged words of the defendant, and there was no act of the defendant indicating the receipt or acceptance. (б) It conclusively appears from the undisputed evidence that plaintiffs never parted with, and defendant never acquired the right to possess and control, the goods, (c) There was no unequivocal act of the parties indicating a receipt or acceptance. (d) There was no acceptance by the buyer.
    “(4) The verdict was against- the weight of the evidence.
    “(5) Error in not submitting to the jury the question as to the amount of goods placed in warehouse.
    “(6) Error in admitting prejudicial, irrelevant testi-mony.”
   Brooke, J.

(after stating the facts). We will consider such of these propositions as are necessary to a determination.

It was defendant’s position that there could be no recovery under the pleadings, because, the action being in assumpsit, and the bill of particulars notifying him that the plaintiffs’ claim arose out of the sale and delivery to him of the butter in question, the plaintiffs, under the pleadings, could not show that they had, at defendant’s request, repossessed themselves of the product, expended money upon its remanufacture and sale, sold it to third persons, appropriating the proceeds to their own use, and giving defendant credit upon the contract for the net proceeds of the subsequent transaction. When plaintiffs offered proof upon this phase of the case, defendant promptly objected, saying:

“The declaration being on the common counts, and the action, if any, being on a breach of contract, the common counts would not lie on the count for goods sold and delivered, if he took this property back and sold it, which objection was overruled, on the ground that Yeiter had not testified that he took the property back, but that he sold it at the solicitation of Mr. Campau, and counsel for defendant duly excepted.”

And again:

“The defendant objected, because defendant was not prepared to meet a claim as to all the expenses that plaintiffs paid out in working over the apple butter under the declaration on the common counts, but supposed the defendant was sued for the price of the apple butter, and that the matter should not be allowed to go in at all in an action for goods sold and delivered.”

Upon this point defendant cites the cases of Lloyd v. Iron Co., 74 Mich. 83 (41 N. W. 867), and Bullock v. Ueberroth, 121 Mich. 293 (80 N. W. 39).

Plaintiffs cite several cases to the effect that a recovery maybe had under the common counts in assumpsit, where the contract has been fully performed by the plaintiff. This position we do not understand is questioned by defendant. If, after delivery of the product to the warehouse, at defendant’s request, plaintiffs had chosen to sue in assumpsit for the recovery of the agreed price, the action would undoubtedly lie. But that is not the case made out by plaintiffs’ proofs, though it is the one indicated by the declaration. A large part (nearly $2,000) of plaintiffs’ recovery is based upon their claim that, after delivery and acceptance of the apple butter, they, at defendant’s request, expended money for labor and materials in working over and selling the product. While the cases cited do not specifically cover the point raised, it would not seem difficult of determination upon principle.

The defendant, prior to the time suit was brought, had not received from plaintiffs an account for the goods claimed to have been sold and delivered, nor for the various sums of money claimed to have been expended for labor and materials upon such goods after delivery. The declaration and bill of particulars filed gave defendant no notice of the real claim of plaintiffs.

The purpose of all pleading is to frame an issue upon which the parties may proceed to', trial. The issue here presented by the pleadings was not the one covered by the proofs. The testimony to which objection was made should have been excluded until, by proper amendment, the true issue was presented. It follows that the motion for a directed verdict, made on behalf of defendant at the •close of plaintiffs’ case should have been granted.

As the case must go down for a new trial, it seems proper to consider the third ground for reversal urged by defendant.

Defendant’s argument in support of this claim is that the statute of frauds cannot be satisfied by an alleged acceptance, based solely upon alleged words of the defendant; and that there is no evidence in the record of any unequivocal act on the part of the defendant indicating a receipt or acceptance. The law upon the question is clearly set forth in Alderton v. Buchoz, 3 Mich. 322, and Gorman v. Brossard, 120 Mich. 611 (79 N. W. 903), and cases there cited.

Plaintiffs concede that the law is as claimed by defendant, but insist that in this record there is evidence of acts on the part of the defendant unequivocally indicating an acceptance. The following alleged acts are pointed out:

“ (a) Paying checks of the plaintiffs given for supplies to be used in manufacturing the apple butter, at a time when he was requiring the plaintiffs to use duebilis in payment of local purchases and financing operations, where before he had refused to finance.
“(b) Almost daily being at the mill and looking after the manufacturing of the apple butter and urging plaintiffs to hurry with the manufacture, and saying to plaintiffs that he would stand back of them.
“(c) Getting a place to store the apple butter and directing that it should be stored in the warehouse which he had obtained the use of for that purpose, and being personally present at different times while it was being stored.
(d) Taking samples of the apple butter to send to people to whom he hoped to sell or was selling it to; seeing different parties about purchasing, and trying to make sales after the delivery in the warehouse.
“(e) Directing plaintiffs to work over the apple butter for him and sell it for him.
“ (/) Putting off the time of settlement upon the pretext that when the apple butter was all disposed of he would then settle up and pay for the same.”

While the question is not without difficulty, it seems plain that some, at least, of these alleged acts are not acts, within the meaning of our decisions, and some are clearly not unequivocal:

(a) The defendant was engaged in the banking business, and his acts in the premises might very properly he referred to a proper performance of his duties in behalf of his principal, the bank.

(b) Defendant’s presence in plaintiffs’ mill may have some legal significance as an act. His alleged instructions to them are, at most, mere words.

(c) Here, again, the only evidence that plaintiffs offer of the act is that defendant told them he had secured the warehouse.

{d) Defendant, on behalf of his principal, the bank, was vitally interested in collecting the claim of the bank. To that end he might very properly urge persons to buy plaintiffs’ product. Was this conduct unequivocal ?

(e, /) These are obviously words instead of acts.

Upon a retrial the jury should be instructed that an acceptance cannot be predicated upon mere statements alleged to have been made by defendant, but must be shown by some act or, acts, on the part of the defendant, unequivocally indicating such acceptance.

The judgment is reversed, and a new trial ordered.

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


text:
    BRYANT v. GRANITE STATE FIRE INSURANCE CO.
    Insurance — Title—Fraud—Notice—Waiver.
    Plaintiff’s disputed testimony that she notified defendant’s agents, at the time she procured a policy of insurance, as to the state of her title, which was only an equitable interest in plaintiff, tended to show a waiver of the usual clause in her policy, nullifying it if she had not a fee simple title to the property, and the evidence justified a verdict for plaintiff in an action on the policy.
    Error to Bay; Collins, J.
    Submitted November 12, 1912.
    (Docket No. 40.)
    Decided March 20, 1913.
    Assumpsit by Rebecca Bryant against the Granite State Fire Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cooley & Hewitt, for appellant.

      Edward E. Anneke (M. L. CourtrigM, of counsel), for appellee.
   Brooke, J.

This is an action upon a policy of insurance against fire. It appears that plaintiff prior to June 2,1910, had purchased from the Eickemeyer estate a dwelling house which was at that time located on Sixth street in the city of Bay City. On that day Messrs. Spear & Lewis, agents for the Commonwealth Insurance Company, and also agents for the defendant company, consented in writing to a transfer of the Commonwealth policy from the prior owner to the plaintiff. Later, and on July 11, 1910, the same agents, by a rider attached to the Commonwealth policy, gave permission for the removal of the building to the south side of Fifteenth street between Fitzhugh and Jefferson streets, Bay City. The Commonwealth policy expired by limitation on September 10, 1910. Prior to that date, and on August 9, 1910, plaintiff, having moved the house to the designated location on Fifteenth street, applied to Spear & Lewis for a new policy upon the building, and the policy in question in this suit was issued. The policy contained the usual condition that:

“This entire policy shall be void if * * * the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

It is not disputed that plaintiff had bought and paid for the building covered by the policy; and it is admitted that Messrs. Spear & Lewis had knowledge of this fact, gained from the former owner, and that they had consented to its removal to the new location; the old (Commonwealth) policy to cover it in transit and at its new location.

It is equally clear that, when the contract of insurance here in suit was effected, plaintiff was not the owner of the ground occupied by the building “in fee simple.” The only paper evidence of title she held at that time was the following :

“Bay City, Mich., June 16th, 1910.
“ Received of Rebecca Bryant $10.00 as part payment of lots 10,11 and 12, block 269, village of Portsmouth, full purchase price to be $525.00, on terms as follows: $50.00 on signing and delivery of contract, contract to be dated
this date, balance in payments of $50.00 every six months, interest at six percent., payable semi-annually. When deed is delivered purchaser is to receive an abstract of title and 20-year tax history. G. W. Ames.”

Prior to taking out the insurance in question, she had paid an additional $25 on July 11, 1910. The building was destroyed by fire on October 18, 1910. Plaintiff paid the further sum of $15 on December 18, 1910, and thereupon received a land contract for the purchase of the three lots, mentioned in the receipt, from Bradley, Miller & Co., a corporation, owner of the property. The contract was dated back to June 16, 1910, as provided in the receipt. G. W. Ames, who signed the receipt, was a real estate dealer acting as agent for Bradley, Miller & Co. in the sale of the lots, but had no power of attorney or written contract from the owner of the property, described in the receipt, to make contracts for the land. Plaintiff had gone into possession of the property and had moved the house upon it before the policy was issued.

With reference to notice to defendant’s agents upon the question of plaintiff’s title, plaintiff testified as follows:

“Q. There was no representations made by you as to the ownership of the property or anything of that description ?
“A. It was all talked over. Mr. Spear and Lewis had held the insurance on—
“Q. When you got this policy of insurance, there was nothing said by you to Mr. Spear, or they to you ?
“A. I don’t know just what you mean.
e‘Q. When you went to Messrs. Spear & Lewis’ office to acquire insurance, you told them you wanted insurance on a building situated on the south side of Fifteenth street, between Fitzhugh and Jefferson ?
“A. Yes, sir.
liQ. And they wrote the policy for you?
“A. Yes, sir.
“Q. And that is all the conversation you had with reference to it ?
“A. No, sir; they asked me for the number of the house.
“Q. You could not get that for them ?
“A. I told them that there was not any number on the house as it was standing. Then they spoke about if I had the contract or deed. I told them that I did not have either one. He should call upon Mr. Ames, and he could give him the information.
“Q. When you went to Spear & Lewis’ office, you told them they could call up Mr. Ames and ascertain the number ?
“A. Yes, sir.
“Q. Did they talk with you then anything about the title to this property ?
“A. Yes, sir; they knew I bought the property.
“Q. Did they talk with you then anything about the title to this property ?
“A. They did not make me no reply when I told them about the property. They did not seem to take that into consideration, anything about it.
“Q. What did you tell them about the property ?
“A. I told them just what I have told you about the property — that I had paid Mr. Ames so much money on the place, and that I was to move the house on there.
“Q. Was that in August, 1910, that you were telling him this ?
“A. Yes, sir. It was whenever it was there. I don’t know even the date I got it on.
“Q. Who did you tell this to ?
“A. I told it to Mr. Lewis.
“Q. You told him that you had what kind of a title, if any?
“A. I did not tell him. I told him just as I told you— I had paid so much on the land, and that when I paid so much I got a contract. He understood it perhaps a great deal more than I did.
“Q. Just give me the conversation, will you, please ?
“A. I will as near as I can. I went in and told him what I had done, what I had paid Mr. Ames. Ten dollars on the contract, or I don’t know what you would call it, and that when I got $50 paid he was to give me a contract, to be dated back to the day that I first gave him the $10, and that I was to pay interest at 7 per cent., I think. That was the— That was all the conversation, and he did not talk very much on that subject at all. That is all that was ever said one way or the other between us.”

This testimony was flatly contradicted by both Spear and Lewis. The record showing the foregoing facts, defendant moved for a directed verdict upon the ground that plaintiff did not have an unconditional title in the lands upon which said building was situate, in fee simple.

This motion was denied, and the court upon this point charged the jury as follows:

“ It is the claim of the defendant that the building insured was upon ground not owned by the insured in fee simple, and no written agreement varying the terms of the policy was indorsed thereon, as required by the terms of the policy; that the,title to the ground upon which the insured building stood was never in plaintiff, and that she did not advise the agent of the company as to the ownership of the land on which the building stood; that neither the company nor its agents had any notice that the land upon which the building stood at the time of the fire belonged to another than the insured.
“Now, in respect to that claim, I make this explanation : It is a fact that Mrs. Bryant did not own the property in fee simple, so there is no use of your putting in any time upon that. Mrs. Bryant claims that she owned the real estate in the way I have stated by getting this writing from Mr. Ames by paying the $10 on it at the time of the delivery of the writing, by paying $25 after-wards before the insurance was effected on the same arrangement, and putting the house upon the real estate, and thereby taking possession of it. That is her claim of title. And Mrs. Bryant further claims that, at the time she effected the insurance, she notified either Mr. Lewis or Mr. Spear, or both of them, and the notice is as good to one as both of them, of the facts of her title to the real estate, namely, that she had an arrangement with Ames that she had paid the $10, and that under her arrangement she was to pay more and have a contract. Now, it is Mrs. Bryánt’s claim that she gave this notice to either Spear or Lewis or both of them. It is the claim of the defendant, and it is the claim of Spear and Lewis, that this notice was not given, so there is a sharp issue of fact for you to decide and for your consideration. I charge you that one of the conditions of this policy provides that this entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material facts or circumstances connected with this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated therein, or if the interest of the insured be other than an unconditional or sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple, and you are instructed that if you believe from the evidence that the plaintiff was not the absolute sole owner of the property in fee simple at the time the policy of insurance in question was issued, and she did not notify the agents of the company of that fact, then this would render the policy void and the plaintiff cannot recover.”

Error is assigned upon this portion of the charge and the refusal to direct a verdict as requested. This assignment raises the only meritorious question in the record.

The jury by their verdict found that the plaintiff had given to defendant’s agents notice of the character of her title as claimed by her.

Defendant relies upon the case of Wyandotte Brewing Co. v. Insurance Co., 144 Mich. 440 (108 N. W. 393, 6 L. R. A. [N. S.] 852, 115 Am. St. Rep. 458), which expressly affirms the holding in Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833). In the Wierengo Case, Justice Grant, speaking for the court, said:

“ Neither the defendant nor its agent, White, had any knowledge of the existence of 'the mortgage at the time the policy was issued. * * * Certainly the insured must be held to some degree of diligence in obtaining knowledge of the contracts to which they are parties. Ignorance will not relieve a party from his contract obligations. The law only relieves him therefrom in cases of fraud, mistake, waiver, or estoppel. An insurer is not required by the law to inquire into the condition of the title to the property insured, or to inform the insured of all the conditions and terms of the policy to be issued, or to read it to him, or to inform him of its contents. When received and accepted without objection, he must be held bound by its terms, unless these terms are waived by the insurer.”

The Wyandotte Brewing Co. Case was determined upon the same state of facts as to notice. It is there said by Justice McAlvay :

“Nothing was said by either party at the time the policy issued relative to the title or interest of plaintiff in and to the land upon which the property was located.”

Both of these cases can, we think, be readily distinguished upon the facts from, the case at bar. Here defendant, through its agents, knew that plaintiff had purchased the house with the intention of moving it to a new location, and that it had been moved to such new location at the time the policy was issued. It likewise had notice (as determined by the jury) of the exact character of plaintiff’s title to the land upon which the house was moved.

Being advised of the character of plaintiff’s title or lack of title in the land upon which the building was located, and thereafter having issued a policy of insurance thereon, the defendant must be held to have waived the provisions of the policy requiring the indorsement of the facts thereon. There can be no question that plaintiff had an insurable interest in the building covered by the policy. It is not claimed that she was guilty of any fraud or acted in bad faith.

This case is controlled by a line of cases in this State of which Hoose v. Insurance Co., 84 Mich. 309 (47 N. W. 587, 11 L. R. A. 340), is án example. It is there said:

“ But we must look at the situation of the parties, the condition of the thing insured, and what was said or done at the time the insurance was effected, in order to arrive at the intention of the parties, which, as before stated, must control in the construction of the warranties contained in the instrument. If the representations are in writing, that is the evidence of what they are. If no application is made in writing, and no statements contained in any written application for insurance as to the risk and the subject-matter of it, then oral proof of such facts may be introduced. In the case under consideration, there was no written application required or given; the application was verbal, and representations, if any were made, were verbal. We have then here the case of a verbal application, and, under the findings of the jury, a true statement of the condition of the title, made by the insured to the defendant through its agent; and afterwards, with the knowledge of that title, the policy in suit issued, in the form and language sued upon.”

The question here involved will be found fully discussed and authorities cited in Rediker v. Insurance Co., 107 Mich. 224 (65 N. W. 105); Convis v. Insurance Co., 127 Mich. 616 (86 N. W. 994). See, also, 19 Cyc. p. 584 et seq.

The judgment is affirmed.

Steebe, C. J., and Moore, McAlvay, Stone, Ostrander, and Bird, JJ., concurred.


author: Kuhn, J.

text:
    J. L. HUDSON CO. v. NO-NAME HAT CO.
    1. Equity — Rearguhent—Degree—Reopening Case.
    After rendering an opinion and prior to the entry of a decree in a chancery cause, heard on pleadings and proofs, the court is justified, in order to properly determine the matters at issue, in ordering a reargument and in permitting either side to introduce further evidence, if desired.
    2. Exemptions — Sales in Bulk — Contracts—Assignments.
    The exemption of $250 in merchandise created by 3 Comp.
    Laws, § 10322 (5 How. Stat. [2d. Ed.] § 13025), is personal to the owner, who loses the right by absconding without making any claim of exemptions upon selling his stock in bulk, in violation of provisions of the “sales in bulk” law, Act No. 223, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2612 et seq.), and unless previously claimed by the debtor or some one authorized by him the amount of such exemption does not pass to the purchaser as against a garnishing creditor.
    Appeal from Wayne; Hosmer, J.
    Submitted November 18,1912.
    (Docket No. 52.)
    Decided March 20, 1913.

      Bill by J. L. Hudson Company against the No-Name Hat Company and others for an injunction restraining certain actions at law and other relief. From a decree for defendants, complainant appeals.
    Affirmed.

      Sloman & Sloman, for complainant.

      Anderson, Backham & Wilcox and Campbell & Dewey, for defendants.
   Kuhn, J.

Complainant bought a stock of goods, consisting of hats and caps, from one Michael F. Tynan for the sum of $492.03, cash, which was paid said Tynan at the time of the purchase. Neither complainant nor Tynan observed the provisions of Act No. 223, Pub. Acts 1905, known as the bulk sales law. The defendants No-Name Hat Company and Newland Hat Company, creditors of .said Tynan, one with a claim of $372.04, and the other with a claim of $76.75, brought proceedings by attachment in the justice’s court for the city of Detroit, and caused the complainant to be garnished on the 30th day of June, 1909, and on the 7th day of October, 1909, respectively.

At the time of the bringing of these attachment suits Tynan had absconded, and his whereabouts were unknown. Complainant thereupon filed its bill of complaint in the Wayne circuit court, in chancery, setting up, substantially, the facts of the purchase, the consideration paid, the value of the goods, the bringing of the garnishment proceedings, the threatened bringing of like proceedings by others, the advice of counsel in relation to its liability, the likelihood of different judgments as to the value, in consequence of which plaintiff would be compelled to pay more than the goods were worth, and prayed that the garnishment suits might be restrained; that the court might inquire into the circumstances of the said purchase; and that, if complainant was liable, it might determine the extent of such liability and the value of the goods, the claims of the respective creditors, and the order of payment. It asks that all other creditors might, as soon as ascertained, be made parties thereto, so that the determination of the court in these proceedings as to the amounts and extent of complainant’s liability, if any, would relieve it from further prosecution, garnishment, and other proceedings, and also asks for general relief.

The defendant No-Name Hat Company filed an answer and cross-bill, and the defendant Newland Hat Company filed an answer. No other creditors intervened. The cause was heard on pleadings and proofs, and at the close the court announced his discision, and a decree was prepared by complainant and O. K.’d by the solicitors of the defendant No-Name Hat Company. Before the decree was signed, a motion was made on behalf of the Newland Hat Company for a reargument, setting up that the exemptions which were allowed in the court’s opinion were not claimed by complainants in its pleadings; and that it was entitled to be heard on this point and to introduce testimony thereon. This motion was duly noticed and brought on for hearing, and the court entered the following order:

“It appearing to the court that justice requires that further testimony be taken in this cause and a reargument had, it is ordered that said cause be and the same is set down for further hearing on the 2d day of January, A. D. 1912, and any party is permitted to introduce such further testimony or evidence as may be desired.”

On the day set for the further hearing, the court also made the following statement:

“ In order that I may answer the suggestions of counsel at the present time, I would say that after I announced a decision in this case, on the motion of Messrs. Campbell & Dewey, I became convinced that, perhaps, I had committed error, and I therefore have declined to settle a decree along the lines of the decision as announced, and have opened the case for further testimony, it seems to me in the furtherance of justice.”

It was urged by counsel for complainant at the hearing, and it is also insisted here, that the court was not authorized to grant permission for a reargument and to take further testimony, and in support of this contention the case of Wendell v. Highstone, 52 Mich. 552 (18 N. W. 354), is relied upon.

We do not think that the holding in that case can be construed to mean that, in a chancery case, before a decree is made, and the judge becomes satisfied that, in the futherance of justice, and in order to properly determine the cause, it is necessary to hear further argument and to take further testimony, he would have no right to do so. In the instant case it clearly appears that the learned judge came to the conclusion that he had an improper conception of the law and the facts, and desired additional light; and we are of the opinion that he not only had the right to proceed as he did, but that it was clearly his duty so to do.

In the final decree the court determined that the complainant had no right to any exemptions in the property which it purchased from Tynan. The second question raised on this appeal is: Was the court in error in refusing to allow the Hudson Company the benefit of Tynan’s exemption ? It appearing conclusively that Tynan had absconded, it follows that he forfeited his right to exemption in the property. Miller v. Miller, 97 Mich. 151 (56 N. W. 348); Betz v. Brenner, 106 Mich. 87 (63 N. W. 970).

The case of Eagle v. Smylie, 126 Mich. 612 (85 N. W. 1111, 86 Am. St. Rep. 562), is cited in support of the proposition that goods to the amount of $250 were not subject to attack after having been sold by Tynan to Hudson. In that case the question involved was the homestead exemption, and this court held that it was an absolute right, and not a mere privilege personal to the owner. The statute which gives the right of exemption of personal property, such as is involved in this litigation, is subdivision 8, § 10322, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13025):

“The tools, implements, materials, stock, apparatus, team, vehicle, horses, harness or other things, to enable any person to carry on the profession, trade, occupation or business in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars.”

In the case of Seitz v. Starks, 136 Mich. 90 (98 N. W. 852), which was a garnishment case, it was held that:

“The further point is made that nearly the entire amount of property sold was exempt property, and the proceeds were not subject to garnishment. Wilson v. Bartholomew, 45 Mich. 41 (7 N. W. 227); Anderson v. Odell, 51 Mich. 492 (16 N. W. 870); Cullen v. Harris, 111 Mich. 20 (69 N. W. 78, 66 Am. St. Rep. 380). We think this point is personal to the debtors or their privies, and understand that they are not in a position to raise it, having neither made the claim below nor appearing here as parties by any proper proceeding. These defendants cannot raise it.”

The right to set off $250 worth of stock in trade is not an absolute right, such as the homestead exemption gives, but is a purely personal privilege of the merchant, which he must exercise at the time of the levy. The word ‘ ‘privies,” as used in the opinion, supra, can only refer to the representative or person designated and authorized by the debtor to exercise this right. In the instant case, under no theory can it be said that the complainant obtained any right to the exemption which Tynan might have claimed if he had been present and in possession of the property at the time of the levy.

The court also determined in its decree:

“That the reasonable value of the merchandise purchased by complainant, as set forth in the said bill of complaint, is the sum of seven hundred twenty-five and no/100 ($725.00) dollars; * * * that the sum of sixty and no/100 ($60.00) dollars as the sum paid by complainant in settlement of the G. H. Gates & Co. claim, shall be deducted from said valuation of seven hundred twenty-five and no/100 ($725.00) dollars, leaving a fund of six hundred sixty-five and no/100 ($665.00) dollars for an accounting; that No-Name Hat Company, defendant and cross-complainant herein, has a prior claim on said fund as against all other creditors of Michael F. Tynan; that said, the J. L. Hudson Company, complainant herein, pay to said No-Name Hat Company the sum of four hundred twenty-two and 24/100 ($422.24) dollars, comprising principal and interest, with costs to be taxed, in full settlement of said claim against Michael F. Tynan and the complainant; that the J. L. Hudson Company, complainant, pay to Newland Hat Company, defendant, the sum of eigthty-nine and 01 /100 ($89.01) dollars, with costs to be taxed, in full settlement of said Newland Hat Company’s claim against Michael F. Tynan and complainant.”

An examination of the record satisfies us that the value of the goods was clearly in excess of the amount which the complainant must account for under this decree, and complainant has, therefore, no reason to complain of this determination of the court.

The decree of the court below is affirmed, with costs.

Steere, O. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


text:
      In re FRESHOUR’S ESTATE. LYON v. MINOR.
    1. Insane Persons — Contracts, Implied — Attorney’s Services as Necessaries — Estates of Decedents.
    Where decedent had been confined in an asylum for insane persons by .proceedings brought by her guardian and the petition was not signed by any one authorized by statute (Act No. 100, Pub. Acts 1909 [2How. Stat. (2d Ed.) § 3656]), her estate was liable for services of an attorney rendered in good faith, at the request of decedent and her friends, for the purpose of liberating her from confinement, although she died before receiving any benefit from the services of claimant who was perfecting an appeal from an adverse order in habeas corpus proceedings; the services of an attorney being considered as necessaries for which the law would imply a contract to pay; it was not necessary to petition the probate court for leave to commence proceedings.
    2. Same — Trial—Charge—Conduct oe Court.
    No prejudicial error occurred in the charge of the court which instructed the jury that claimant was a reputable attorney: the word reputable as used in the instruction meant merely that claimant was a regular lawyer, a member of the bar.
    Error to Montcalm; Davis, J.
    Submitted November 20, 1912.
    (Docket No. 92.)
    Decided March 20, 1913.
    Leman A. Lyon presented a claim against the estate of Lucena A. Freshour, deceased, for services rendered as attorney. The claim was disallowed and claimant appealed to the circuit court. Judgment for plaintiff. M. Jay Minor, administrator, brings error.
    Affirmed.

      F. A. Miller and. B. A. Hawley, for appellant.

      Scully & Davis and Leman A. Lyon, for appellee.
   Kuhn, J.

The appellee in this cause is an attorney, and the subject-matter of the controversy is a claim which he filed for professional services rendered for Lucena A. Freshour, now deceased. Mrs. Freshour was a married woman, but had been divorced from her husband. The claim was disallowed by the judge of probate at the hearing on claims. On appeal taken to the circuit court, the case was tried before a jury and a verdict had in favor of the claimant for the sum of $89.41, and judgment was entered accordingly.

On February 8, 1909, a petition was filed by Geo. H. Lester, an uncle of said deceased, alleging incompetency of the deceased and praying for the appointment of a guardian. Oneella Lester, an aunt, was appointed guardian and qualified as such on March 30, 1909. On August 17, 1909, the guardian filed her petition in the probate court, setting forth that said incompetent person was an epileptic and needed treatment in an institution for feeble-minded and epileptic persons. An order was made appointing physicians to examine the incompetent, and, upon their reports being filed, the judge of probate says he thinks he made an order sending Mrs. Freshour to the Home of the Feeble-Minded at Lapeer, but that he could not get her into that institution because of its crowded condition. On the 31st of August, 1909, Oneella Lester, as guardian, filed a petition in the probate court alleging, among other things, that Mrs. Freshour was an insane person and in need of asylum treatment, and praying that she be admitted to the Traverse City Asylum for the Insane as a private patient. The same physicians who had examined her upon the previous hearing were appointed to examine her with reference to this petition, and in due course of time filed their certificates showing that Mrs. Freshour was an insane person and needed treatment in an asylum. Thereupon, an order was made by the judge of probate adjudging Mrs. Freshour insane and a fit person for care and treatment in an asylum and that she should be admitted to the asylum at Traverse City as a private patient. Mrs. Freshour did not appear at any of these proceedings by attorney and was taken to the asylum at Traverse City, where she remained until April, 1910.

It appears from the testimony of Mrs. Lester that, at the time of the hearing in the probate court as to the insanity of Mrs. Freshour, she represented to the incompetent that she was being taken to the probate court for the purpose of ascertaining whether or not she could remarry her divorced husband. It is claimed by claimant that, due to the efforts made by him in her behalf, Mrs. Fresh-our was released by the asylum authorities in April, 1910, and taken to St. Mary’s Hospital in Grand Rapids on account of blood poisoning in her hand.

Mrs. Freshour died on the 9th of August, 1910, leaving no last will and testament, and an estate consisting of real and personal property amounting to $7,250 in value. Her sole heir at law is her nephew, M. Jay Minor, who was appointed as administrator of her estate and is the appellant in this cause.

The attention of the claimant and appellee was first brought to the proceedings set out in the record and the condition of Mrs. Freshour in the latter part of September or early in October, 1909, by friends of Mrs. Freshour, among whom were the supervisor of Bloomer township and his wife, who lived on the farm adjoining her home. These friends brought to the claimant a number of letters written by Mrs. Freshour to them from the asylum at Traverse City, where she was then confined, complaining of her retention there and requesting them to interest themselves in her behalf. Claimant declined for some time to take up the matter, but finally entered upon an investigation, after being informed of several letters Mrs. Freshour had written Mrs. Bartholomew, one of the friends, requesting her to go and see him and ascertain what he could do to get her released from the asylum. This investigation disclosed that the proceedings by which Mrs. Freshour was confined were absolutely void for the reason that the petition to have her adjudged insane was made by one not authorized by law to make it.

Act No. 100, Public Acts of 1909, provides as follows:

“The father, mother, husband, wife, brother, sister or child of a person alleged to be insane, or the sheriff, or any superintendent of the poor, or supervisor of any township, or any peace officer within the county in which the alleged insane person resides or may be, may petition the probate court of said county for an order directing the admission of said person to an asylum or institution for the care of the insane,” etc.

The legislature undoubtedly excluded the guardians from those authorized to make this petition, because mentally incompetent persons under guardianship may become, by reason of their infirmity, a great care upon their guardians without having reached the condition which the law defines as insanity, and the legislature apparently contemplated that there might be an attempt on the part ofo guardians to relieve themselves of the care of their wards by attempting to commit them to some institution.

It is claimed by Mr. Lyon that he prepared a petition for leave to appeal from the order adjudging Mrs. Freshour insane, but that he did not present it to the court for the reason that he considered a writ of habeas corpus more expeditious in securing her release and for some other reasons. Habeas corpus proceedings were instituted but dismissed by the circuit court on the hearing. A petition was also filed in the probate court by Mrs. Freshour requesting the court to adjudge that she was no longer insane and that she be declared restored to soundness of mind. This petition was heard and dismissed by the court at the hearing, which was attended by Mr. Lyon who represented Mrs. Freshour. Various items of expense for traveling, etc., were incurred, and the total amount claimed for services and expenses was $106.46, which was reduced by two payments of $10 and $5, respectively, to $91.46, which was the amount for which a claim was presented to the probate court.

The questions raised on this appeal are stated by counsel for appellant as follows:

“ (1) The objections to the reception in evidence and the exceptions covering the same.
“ (2) Refusal of the court to direct a verdict in favor of the administrator.
“ (3) The instruction of the court to the jury that ‘ the plaintiff in this case is a reputable lawyer, member of this bar.’
(4) The argumentative nature of the charge of the court as a whole.”

The trial judge charged the jury, in part, as follows:

“ The plaintiff in this case is a reputable lawyer, member of this bar, and had a right, if, acting in good faith and upon circumstances that would lead a reasonable man to believe the woman’s condition is such that she should not be confined in an asylum, if upon the examination of the records he acted in good faith believing the proceedings were illegal, then he had the right to act and use his best judgment and best skill as a lawyer to aid her to obtain her liberty from that institution and have set aside what he believed was an illegal order. He claims to have examined the records in this case and found that a petition had been filed and she was adjudged an epileptic, for which the law does not allow people to be sent to an asylum, unless the reason of that person is shown by the testimony to be undermined and unsound, there being another place for the detention of feeble-minded people. He claims the letters he considered tended to show she was not insane, that is of unsound mind,,and that she was begging to get out; that acting in good faith he performed certain services which tended to her benefit. The claim is made that finally she did obtain her liberty through the efforts in part of Mr. Lyon; that is his claim; that later papers were filed in this court in regard to habeas corpus writ asked for and process obtained, but that that was dismissed; that later efforts were being made to review all of the orders of the probate court and this court; and that she died before the matter was fully completed. I say to you, as matter of law, she had a right to make her appeal; and though she may have been insane, yet, if the plaintiff was acting in good faith looking to her relief on account of her illegal restraint, he would have the right to act for her and use his best efforts. It would be his duty after assuming to act at all to take every proper legal step towards looking up evidence and looking up the law, making examination of the records to ascertain the legality or illegality of the processes or judgments whereby she had been sent to the institution, and, if he found in his opinion that she was suffering from improper or illegal restraint, he had a duty to perform under those circumstances of using his best judgment and skill in obtaining her liberty for her, and, so acting, no matter whether successful in whole or not, he would be entitled to receive from her estate what the services were reasonably worth.”

It is the contention of counsel for appellant that the claimant in this cause acted without any authority whatsoever ; that Mrs. Freshour was incompetent to make any contract; that it was claimant’s duty to lay the facts before the probate court of Montcalm county and ask • for leave to institute proceedings; and that, no such proceedings having been taken by herself or the guardian of the incompetent person, he cannot recover.

It is an old and well-established rule of law that, when necessaries have been furnished to a person, it matters not whether the recipient is mentally competent or otherwise. If there is no express agreement to pay for the necessaries, an implied agreement arises. The rule is stated in 4 Cyc. p. ’993, as follows:

. “ The services of an attorney will usually be considered as necessaries, and a promise to pay for them will be implied when rendered in a proceeding personal to an infant or other person incapable of entering into a contract, such as an habitual drunkard or an insane man.”

It is claimed in this cause that the attorney is not entitled to compensation because his efforts did not result to the benefit of Mrs. Freshour. We hold the rule to be that an attorney is entitled to compensation for his services, whether those services have been beneficial to his client or not, so long as the' services have' been faithfully and intelligently performed.

The circuit judge did not err in submitting the case to the jury upon the theory outlined in his charge, and the real question at issue was: Did the claimant act in

good faith and give the client the benefit of his best intelligence, industry and effort ?

Counsel for appellant insist that the court had no right to charge the jury, as a matter of fact, that the appellee is a reputable lawyer, and that by using this language the court sustained the character of the appellee, as a fact, and that in this case the character and reputation of the appellee as a man or as a lawyer was not involved, as his character as a lawyer or as a man had not been assailed. It is the contention-of the appellee that the word “reputable” as used cannot be said to mean more than this, that the claimant was a duly accredited member of the Montcalm county bar, and as a practicing attorney was entitled to his compensation, if the other essential facts were proven. We are of the opinion that the word “ reputable,” as used in this connection and as generally understood by the profession, does not mean more than if the court had said that he was a regular lawyer. We do not believe that the language used did, or could, mislead or influence the jury. An examination of the whole charge of the court satisfies us that it was a full, fair, and comprehensive statement of the law of the case and not subject to the criticism made by counsel for appellant, that it was argumentative in its nature.

We have examined the assignments of error with reference to the reception of testimony, and find no prejudicial error committed by the court with reference thereto.

The judgment of the trial court is therefore affirmed, with costs.

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


text:
    POTTER v. SHIELDS.
    1. Sales — Warranty—Contracts.
    No warranty of fitness could be implied as to a boiler that defendant installed in plaintiff’s residence, expressly refusing to guarantee any boiler installed with the existing system of piping in the house.
    2. Same.
    Nor would any other warranty be implied if, as claimed by plaintiff, the defendant expressly warranted the boiler to be as good as another kind mentioned. "
    3. Evidence — Parol Testimony — Sales.
    The contract consisting of a written proposition accepted orally by plaintiff, and not including all the terms, was not governed by the parol evidence rule and plaintiff could show an express warranty by parol evidence.

      4. Damages — Instructions to Jury.
    It was insufficient to instruct the jury as to the damages, “You will have to rely again on the evidence that is before you. How much was plaintiff damaged, if he was damaged at all ? You have heard the testimony; as reasonable, honest, intelligent men you would have to decide that, if you come to that point.” More explicit instructions should have been . given.
    Error to Ingham; Collingwood, J.
    Submitted November 21, 1912.
    (Docket No. 80.)
    Decided March 20, 1913.
    Assumpsit in justice’s court by James W. Potter against Thomas J. Shields and another for breach of warranty of a steam boiler. Prom a judgment for defendants, plaintiff appealed to the circuit court. Judgment for plaintiff, defendants bring error.
    Reversed.

      Frank L. Dodge,.for appellants.

      Cummins & Nichols, for appellee.
   Kuhn, J.

The plaintiff is the owner of a house in the city of Lansing which had a steam-heating system with about 550 feet of radiation. Desiring to install a boiler of greater capacity than the one then in use, in the winter of 1910, he examined a boiler known as the Ideal No. 046, manufactured by the American Radiator Company, and which was in the home of Richard Scott in said city, to which was attached at that time about 600 feet of radiation. Wishing to install “a duplicate of the Scott job,” he applied to the defendants for a price to furnish and install the same, and in reply he received the following letter :

“ Lansing, Michigan, July 1, 1910.
“ J. W. Potter, Lansing, Michigan.
ít jDl2.A.IÍ •
“ We will furnish and install a No. S-25-5 Ideal Sectional Steam Boiler as manufactured by the American Radiator Company of Chicago, complete, for the sum of $213.60. This includes disconnecting the old boiler now in place, cleaning and piping brick in the cellar, making proper connections from steam mains and returns, and new boiler covered with asbestos cement 1£ inches thick.
The 046 Ideal Steam Boiler, same as installed in Mr. Scott’s residence, is not manufactured only on request. The No. S-35-5 taking its place, but same can be had at an additional cost of $55 to the above price.
“Yours respectfully,
“Shields & Leadley.”

It is claimed by plaintiff that after receiving this letter he had a conversation with Mr. Leadley, in which he objected to anything but the 046 boiler, and that Mr. Leadley said:

“ The 35 is being made to take its place, and is an improvement on the 046, and you had not ought to hesitate about buying it.”

This is denied by Leadley. Plaintiff says he made no further investigation of the boiler, but, relying upon this claimed statement, gave the defendants the order, and the boiler was promptly installed and the work paid for.

It is further claimed that the boiler did not give satisfaction, would not make steam and heat the house satisfactorily, and, after notifying the defendants and giving them an opportunity to make the boiler work satisfactorily, the plaintiff had it removed from his house, sold it for $75, retained some of the fittings, and reinstalled the old one.

Suit was brought in the justice’s court, and on appeal to the circuit court the case was tried by a jury, and the plaintiff had a verdct in the sum of $81.10. Judgment being had thereon, the case was brought here by writ of error. Counsel for defendants assign 89 errors.

The first serious question that presents itself in examining the charge of the court is that the judge submitted to the jury the question of an implied warranty. He said:

“I will say, in regard to an implied warranty, that when a dealer, knowing that a purchaser is relying upon his skill and judgment, and knowing that the purchaser himself is ignorant as to the fitness and suitability of the article which he is offering for sale, sells the article to him, he is held, as a matter of law, impliedly to warrant •the article to be reasonably fit and suitable for the purpose for which he knows it was intended. * * * If you find that the plaintiff bought this boiler, and that the defendant sold it to him believing that the plaintiff had told him that he knew nothing about boilers, and that defendant had given him an implied warranty in regard to the boiler’s being fit and suitable, and the boiler was not fit and suitable, then there would be damages. Now, the question as to whether it is fit and suitable is a question of fact for you; you have heard all the testimony; you are to determine that.”

There can be no question that there might be an implied warranty that a boiler is reasonably fit and suitable for the purposes for which it is intended to be used. Nevertheless, it is well established that there can be no such implied warranty where the seller has expressly refused to give a warranty. 35 Cyc. p. 393; Burnett v. Hensley, 118 Iowa, 575 (92 N. W. 678); Lynch v. Curfman, 65 Minn. 170 (68 N. W. 5).

The plaintiff testified that at the time Leadley came to his house, a few days before he received the letter of July 1st, in order to inspect the premises, he said that he would not guarantee any boiler installed under the system of piping in the house. Leadley testified with reference thereto:

“I looked around in the basement. I saw the piping, and asked him if he had ever had any trouble with his heating plant. He said,‘No.’
“Q. He said he had no trouble ?
“A. Yes, sir. ‘Well,’ I says, ‘I would not guarantee a boiler installed under the present conditions of piping in your house.’
“Q. You would not guarantee it ?
“A. Yes, sir; I told him that before I made any figures on changing.
Q. At his house?
“A. At his house; right down cellar.
“Q. Did you at any time guarantee to heat his house ?
“A. No, sir.”

This completely negatived the idea of an implied warranty and eliminated it from the case, and it should not have been submitted to the jury.

The theory upon which this case was tried by plaintiff was that there was a guaranty which entitled him to have either a boiler as good or better than the 046; and that this representation and guaranty was made in the conversation which plaintiff testified to, subsequent to the receipt of the letter. As it is claimed that there was an express warranty that the boiler should be as good as some other boiler, no other warranty can be implied on the same or closely related subjects. 35 Cyc. p. 392; Monroe v. Hickox, Mull & Hill Co., 144 Mich. 30 (107 N. W. 719); Hall v. Car Co., 168 Mich. 634 (135 N. W. 118).

It is claimed that the evidence tending to show by parol an express warranty was improperly admitted, because the contract is in writing, and the general rule is relied upon that, where parties have reduced to writing what appears to be a complete and certain agreement importing a legal obligation, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the whole of the agreement between the parties; and parol evidence of prior, contemporaneous, or subsequent conversation, representations, or statements will not be received for the purpose of adding to or varying the written instrument. It may be conceded that if such a writing exists between the parties, and it contains no warranty at all, no express warranty can be added by parol; and if it contains a warranty parol evidence would not be admitted to extend, enlarge or modify that which the writing specifies. 2 Mechem on Sales, par. 1254.

However, in the instant case, the contract relied upon consists of a letter written by defendants and its alleged acceptance in an oral conversation. It cannot be claimed that the written instrument is the completed contract; and it has been repeatedly held that in such a case parol evidence may be had to show that a warranty constituted a part of the contract. The rule, as stated by Mr. Mechem in his work on Sales, vol. 2, par. 1255, referred to above, is as follows:

“Where, however, the writing does not purport to be final and complete, as where it contains but part of the contract, or is a mere order for the goods, or a mere receipt, bill of sale, bill of parcels, or the like, and the writing, whatever it may be, is silent upon the subject of a warranty, parol evidence that a warranty constituted part of the contract may be received. A fortiori it may be received where the writing was really not part of the contract at all.”

It is the claim of the plaintiff that, before the offer made in the letter was accepted, the conversation with reference to the warranty was had; and that because of this representation the offer was accepted. Under this state of facts it was the duty of the court to submit to the jury the question of an express warranty. Our attention is challenged to the case of Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286); but the case is distinguishable from the one now under consideration, because in that case the contract was reduced to writing and signed by the parties. No warranty being found in the contract, this court held that no evidence could be shown of a parol warranty. See, also, McCray, etc., Storage Co. v. Woods & Zent, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599).

On the question of the measure • of damages, the court said:

“ Now, if you come to the question of damages, you will have to rely again on the evidence that is before you. How much was plaintiff damaged, if he was damaged at all ? You have heard the testimony; as reasonable, honest, intelligent men you would have to decide that, if you come to that point.”

It is urged that this was not sufficient, and that the court should have given the jury some rule to guide them on this branch of the case. The measure of damages that the plaintiff was entitled to, if any, could easily have been outlined to them, and more explicit instructions should have been given the jury with reference thereto, as, under the instruction given, the jury was allowed to speculate upon this element of the case. Howe v. North, 69 Mich. 272 (37 N. W. 213).

The judgment of the circuit court is reversed, and a new trial granted.

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