Ginn v. W. C. Clark Coal Co.

Carpenter, C. J. Plaintiffs and defendant entered into a written contract whereby the former agreed to sell, and the latter to buy, 60 cars of coal — described in the contract as Pine Grove coal — to be delivered two cars each day, commencing October 15, 1902. Defendant received 19 of these cars, and refused to receive other cars, upon the ground that the coal shipped was not Pine Grove coal. After some negotiations, which will be hereinafter stated with more detail, defendant paid for the coal received, and refused to pay damages for that which it refused to receive. Plaintiffs brought this suit and recovered damages in the court below. Defendant contends that the trial court erred in charging the jury that there was no evidence from which the jury could find that by an agreement between the parties defendant had satisfied plaintiffs’ claim. The evidence from which defendant claims the inference of accord and satisfaction should be drawn may be briefly stated, as fol [86] lows: After defendant had received part of the coal, and had refused to receive the balance, plaintiffs wrote demanding payment for all the coal then shipped, inclosing an itemized account of said shipments. To this letter defendant replied that the coal received by it did not correspond with the contract, but offered to pay for said coal if plaintiffs would accept the same in full satisfaction of their claim. Plaintiffs at once replied: “A check of your account shows that $1,418.69 is the correct amount due from you on the cars which you have-accepted. We demand that you remit us immediately that amount in settlement for those cars.” Defendant thereupon sent plaintiffs.a check for $1,418.69 and the following letter: ‘ ‘ Inclosed herewith we hand you our check for $1,418.69, being in full satisfaction of your account to date.” The letter also inclosed a voucher prepared by defendant to be signed by plaintiffs which indicated that the money paid in full the account shown in the “attached statement.”., The “attached statement” was the itemized account above mentioned (which plaintiffs had transmitted to defendant) with a line drawn through eaoh of the items for shipments which defendant had refused to receive. Plaintiffs at once and without protest accepted and used this check. We think the trial court correctly charged that this evidence did not warrant a finding of accord and satisfaction. Plaintiffs had a right to understand that defendant, by drawing lines through the items for 'shipment not received, intended to withdraw them from the-account which the check was intended to pay. Defendant complains because the trial court excluded certain testimony offered by it for the purpose of proving that the coal rejected was not of a merchantable quality. The trial court had a right to understand that defendant sought to introduce this testimony, not for the purpose of reducing damages, but solely for the purpose of justifying its rejection of the coal. As this court reviews upon writs [87] of error only questions raised in the trial court, the question for our determination is: Was this testimony admissible to justify the rejection of the coal ? Defendant, after having a full opportunity to examine the coal, notified plaintiffs that they rejected the same for a certain specific ground, viz., the coal was not Pine Grove coal. Plaintiffs had a right to act upon the assumption that this was the only ground upon which defendant relied, and it would be unjust to permit defendant to rely upon other grounds on the trial of this case. This precise question was determined in Littlejohn v. Shaw, 159 N. Y. 188. There defendant rejected 25 tons of No. 1 cube gambier, which it had agreed to purchase from plaintiff, “for two reasons, first, because they are not good merchantable quality and again because they are not in good merchantable condition.” Upon a suit brought to recover damages it was insisted that it was incumbent upon plaintiff “to prove that all the terms of the contract were fufilled upon their part.” This was denied by the court, who said that defendants, by “ formally stating their objections, must be held to have waived all other objections.” Défendant offered in evidence a telegram sent by plaintiffs December 5, 1902, from Ironton, Ohio, to their agent at Detroit, who on that day resold the' rejected coal. The telegram read: ■ : 4 4 Lump selling here today at $2.75 mines. If $1.90 best can do, sell.” The trial court refused to permit this telegram to be introduced in evidence. We think-this ruling correct. The telegram had no tendency to prove, as claimed by defendant, that the coal was sold for an excessively low price. The coal was sold at Detroit. The plaintiffs had a right to resell for the best price they could obtain there. They were not bound to carry the same to Ironton, and the market price at that .place was wholly immaterial. It is equally clear that without other testimony — and there was no such testimony — the telegram would not, as de [88] fondant claims, have warranted the inference that the coal sold was of an inferior quality. Complaint is made because the trial court denied defendant’s motion for a new trial. No exceptions were taken to this denial, and therefore it is not re viewable in this court. Pearl v. Township of Benton, 136 Mich. 697. No other question raised in defendant’s brief demands discussion. . Judgment affirmed, with costs. Grant, Montgomery, Ostrander, and Moore, JJ., concurred.