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case orders for intoxicating liquors, in quantities of three gallons or more, were taken by respondent in the township of Forsyth. The liquors bargained for were then at his place of business in the city of Negaunee in stock in his wholesale liquor store. He took the orders to his place of business and filled each one from his general stock and delivered them, each properly addressed, to the common carrier railroad to transport from Negaunee to Forsyth, where they were delivered by the common carrier to the purchasers, who each paid transportation charges upon his goods. Afterwards respondent went to Forsyth and collected the purchase price for these goods from the respective purchasers. Mr. Mechem, quoting Chalmers on Sales, says:

‘By an agreement to sell,' it has been said, 'a jus in personam is created; by a sale a jus in rem is transferred. If an agreement to sell be broken, the buyer has only a personal remedy against the seller. The goods are still the property of the seller, and he can dispose of them as he likes.

But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against him, but also the usual proprietary remedies against the goods themselves, such as an action for conversion and detinue.'” 1 Mechem on Sales, $ 5.

Applying this rule to the instant case, there can be no doubt that if respondent had refused to fill the orders he took in Forsyth the individuals who gave the orders would have only a personal remedy against him. It is therefore clear that taking these orders did not amount to a sale of these liquors in Forsyth.

It is contended that because respondent, the owner of the goods, personally took the orders, thereby accepting them, the sale then and there became a completed sale, and such a case would not be governed by the same rule which applies to cases where agents solicit orders and forward them to their principals, as

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ordinarily they could not be held accepted until received by the principal. The contention, it seems to us, is completely answered by applying the above test under the rule quoted from Chalmers by Mr. Mechem. If the orders had not been filled by respondent, the only remedy for failure to do so would have been against him personally.

We therefore hold that no sales of intoxicating liquors were made by respondent in the township of Forsyth. The contention of the respondent is therefore sustained. The court erred in not granting his motion to direct a verdict of not guilty.

The verdict of the jury is set aside, and the respondent will be discharged.

BROOKE, KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

GLANN V. WHITE.

1. DAMAGES-PROFITS-LOSS OF CROPS—BREACH OF WARRANTY.

It was not prejudicial error to submit to the jury, as an

element of damages for false representations or warranty
of a team of horses, the question of plaintiff's right to
recover for delay in his farm work and loss of crops re-
sulting from the sickness and death of one of the horses
which proved to be sick of distemper or influenza; knowl.
edge or notice of the purpose for which the horse was
purchased being established, the record also showing that
the jury made no allowance for such loss of profits. Os-
TRANDER, BIRD, and STEERE, JJ., dissenting, on the ground
that the loss of profits should not have been submitted

to the jury.
2. TRIAL-INSTRUCTIONS TO JURY-NEGLIGENCE.

Where the court charged the jury that if defendant war.

ranted the horse that died to be sound, and at the time

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of sale the horse was diseased and the disease was aggravated by driving, after plaintiff knew or should have known of the fact that the horse was sick, and it would probably have lived if the plaintiff had given it proper care, plaintiff would not be entitled to the full value of the animal, and on plaintiff's attorney suggesting that the court had omitted to insert in the instruction the limitation of said duty of acting with that care which an ordinarily prudent man would act, and where the court told the jury that he would be held to the exercise of ordinary care, required to act as an ordinarily prudent man would, the jury would not be presumed to have fol

lowed the previous instruction. 3. SAME-FRAUD-CONSEQUENTIAL Loss.

In an action of tort it is not improper to permit a recovery

for indirect or consequential injuries resulting from the wrongful act. OSTRANDER, BIRD, and STEERE, JJ., dissenting.

Error to Lapeer; Smith, J. Submitted January 23, 1914. (Docket No. 119.) Decided July 24, 1914.

Case by Loren Glann against Ripley White and Kirk White, copartners as White Bros., for breach of warranty of the soundness of a team of horses. Judgment for plaintiff. Defendants bring error. Affirmed.

Geer, Williams & Halpin, for appellants.

Clarence A. Cameron (Farley & Selby, of counsel), for appellee.

This action arises from an alleged breach of warranty of the soundness of a team of horses sold by defendants to plaintiff on April 24, 1912, at Lapeer, Mich. The team was driven by the son of the plaintiff to Flint, a distance of 20 miles, where they were placed in a feed barn and taken care of. Before arriving at Flint, the son had noticed that one of the horses did not travel as well as the other one, and had coughed a little on the way. After the rest at Flint, the team was driven to Flushing, the home of plaintiff,

181 Mich.-21.

3

a distance of about 10 miles. The horse would not
eat, was taken sick, and died a week later. A veter-
inary who was called diagnosed the disease as in-
fluenza, commonly known as horse distemper, a con-
tagious, infectious disease, and four other horses of
plaintiff were taken sick. This action is brought in
trespass on the case, and damages, actual and conse-
quential, were claimed. The items of plaintiff's claim
are as follows:
Value of horse that died.,

$250 00 Veterinary bill

37 10 Care and medicine.

50 00 Damages to plaintiff in delaying farm work. 100 00 Expense of looking for another farm horse..... 25 00

$462 10 The jury rendered a verdict in favor of the plaintiff in the sum of $262.10. From a judgment entered thereon, defendants appeal by writ of error.

KUHN, J. (after stating the facts). It is the contention of appellants that the court erred in permitting plaintiff to testify as to the number of acres of different kinds of crops he intended to put in in the spring of 1912 and the number he was prevented from putting in because of the loss of the horse and the sickness of the others. It is urged that these damages are too remote, contingent, uncertain, and speculative. At the time the team was purchased, the defendants knew the purpose for which it was bought, as defendant Ripley White testified:

“They [plaintiff and son] were going to farm it. They had sugar beets to get in, and wanted another team.”

In this action it was proper for plaintiff to recover compensation for all loss or injury sustained. Allison v. Chandler, 11 Mich. 542; Arnold v. White, 153 Mich. 607 (117 N. W. 164);: Krzyszke v. Kamin, 163 Mich. 290 (128 N. W. 190); 13 Cyc. p. 34.

Mr. Justice CHRISTIANCY, in a very instructive opinion in Allison v. Chandler, supra, in speaking of this kind of damages, said (page 554):

“The law does not require impossibilities, ana cannot, therefore, require a higher degree of certainty than the nature of the case admits. And we can see no good reason for requiring any higher degree of certainty in respect to the amount of damages than in respect to any other branch of the cause. Juries are allowed to act upon probable and inferential, as well as direct and positive proof. And when, from the nature of the case, the amount of the damages cannot be estimated with certainty, or only a part of them can be so estimated, we can see no objection to placing before the jury all the facts and circumstances of the case, having any tendency to show damages, or their probable amount, so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit. This should, of course, be done with such instructions and advice from the court as the circumstances of the case may require, and as may tend to prevent the allowance of such as may be merely possible, or too remote or fanciful in their character to be safely considered as the result of the injury.

"In the adoption of this course it will seldom happen that the court, hearing the evidence, will not thereby possess the means of forming a satisfactory judgment whether the damages are unreasonable, or exorbitant; and, if satisfied they are so, the court have always the power to set aside the verdict and grant a new trial."

Again, at page 558:

"But it is insisted that loss of profits constitutes no proper ground or element of damages. If there be any such rule of law, it is certainly not a universal, and can hardly be called a general rule. Decisions, it is true, may be found which seem to take it for granted that the rule is universal. But there are numerous cases, even for breach of contract, in which profits have been properly held to constitute, not only an element, but a measure and sometimes the only measure) of damages, as in Masterton v. Mayor, 7

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