Rasch v. Bissell

Sherwood, J. The plaintiffs were merchant tailors and did business in Detroit. They were employed to make, and did make, an overcoat for the defendant, the agreed price for which was to be sixty dollars. The coat was made like the sample designated by the defendant at the time it was ordered, and when completed, which was in good time, the plaintiffs sent it to the defendant at his house. In a day or two thereafter it was returned to the plaintiffs, to be made a little larger, which was done by plaintiffs, and in a few days thereafter again sent to defendant at his house. Defendant returned it, saying it was not heavy enough for him. Plaintiffs then showed him the sample overcoat, and that it was completed according to the contract. The plaintiffs, however, told him they could make it heavier, and did so, and again sent the coat home. The next morning defendant sent it back with a message saying he did not want it, and when plaintiffs saw him a few days thereafter, at his office, he informed them he “ did not wish for a coat, for he had bought a ready-made one.” He then refused to take the coat and pay for it. The evidence shows it was well made, and a reasonably good fit. The plaintiffs brought suit in assumpsit, and declared on all the common counts and specially upon the contract. The case was tried at the circuit on appeal before a jury, and the plaintiffs recovered a judgment of $60. The defendant brings error. Rasch was the only witness sworn, and all the testimony given upon the trial was by the plaintiff. Rasch testified to the facts above stated, and at the close of the trial the court charged the jury that, if they believed Mr. Rasch, the plaintiffs had made out a prima facie case, and their verdict [457] should be for the plaintiffs. He also further charged the following: “ The defendant has not seen fit to come in here and offer evidence, or try the overcoat on in your presence, or bring experts to show that it was not a good fit. Now, that is his privilege. If his attorney was satisfied, or if he thought that the plaintiff did not make out a good case, he was not obliged to call Mr. Bissell; but I charge you that, if you believe Mr. Easch, your verdict will be for the plaintiffs, for Mr. Easch, for $60, until the defendant brings in evidence here to overcome that testimony.” These charges were excepted to. They are not erroneous. They were fully warranted by the testimony in the case. The evidence alluded to therein stands undisputed, and, if believed by the jury, their duty was not too strongly indicated by the court. This disposes of defendant’s first, second, fourth, fifth, seventh, tenth and eleventh assignments of error. There was no testimony to support the defendant’s third request to charge, and no error was committed in its refusal. That portion of the charge contained in defendant’s ■eighth assignment of error, wherein the court states what was comprehended in the order for work at plaintiff’s store, was unobjectionable, but if erroneous it could not have harmed the defendant. The charge in the twelfth assignment, we think, was supported by the evidence in substance. The remaining assignment assumes the claim made by the plaintiffs is within the Statute of Frauds. This is a mistake. That question is not involved in the case. The testimony clearly shows that the property contracted for was delivered to the defendant in pursuance of the contract, with which it complied. "Whatever changes were afterwards made in the garment were so made at the request of the defendant, and since that time plaintiffs have held it subject to the disposition of the defendant. "We find no error in the record, and the judgment must be affirmed with costs. The other Justices concurred.