Yeiter v. Campau

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 [99] 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 de [100] fendant’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 [101] 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 alleg [102] ed 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.