1. A rule of court in Michigan provides that where a defendant
pleads matter of setoff founded on a written instrument, he cannot
"be put to the proof of the execution of the instrument or the
handwriting" of the opposite party unless an affidavit is filed
"denying the same."
Held that the want of such affidavit
does not preclude the plaintiff from showing that such an
instrument, dated January 2, was executed on Sunday, January 1, or
that his duplicate of an instrument executed in duplicate by him
and the defendant differs in its contents from the one retained by
the defendant.
2. The plaintiff, where the quality of goods which he furnished
at a given time to the defendant is in question, may show the good
quality of like articles furnished at the same time by him to
another party if he further shows that those he furnished to each
party were of the same kind and quality.
3. Where the evidence is such that, as to a given matter, there
is no question for the jury, a charge and a refusal to charge in
regard to such matter are not a ground for reversing the judgment,
because they work no injury to the party excepting.
4. The court charged the jury that while the plaintiff could not
recover for any more goods than his bill of particulars set forth,
he was not bound by a mistake in carrying out the rate or price,
but could show what he was actually to have, it not appearing by
the record what were the contents of the bill, but it appearing
that the plaintiff claimed there was a mistake in it in that
respect.
Held that the charge was not erroneous.
5. After a new trial has been had, pursuant to the mandate of
this Court and a second judgment rendered, no errors other than
those committed after the mandate was received below can be
considered here.
The case is stated in the opinion of the Court.
Page 106 U. S. 343
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
The defendant in error brought this suit against the plaintiffs
in error in July, 1872, in a court of the State of Michigan. It was
removed into the Circuit Court for the Western District of Michigan
in August, 1872, before the declaration was filed. The action is
assumpsit. The declaration claims $25,000 for goods sold and
delivered, and a like amount for money had and received, and
$15,000 for interest. The plea was nonassumpsit, with a notice of
setoff off to the amount of $25,000, and a notice that the goods
alleged to have been furnished by the plaintiff were furnished
under a special contract that they were to be of first-class
quality, and that they were not. A further notice under the plea
alleged that the goods furnished were furnished under three several
contracts, made January 2, 1865, January 27, 1866, and December 25,
1866, for the furnishing by the plaintiff to the defendants of
shovel handles, and that the plaintiff did not fulfill the
contracts as to the quality of the handles. In April, 1875, the
suit was tried by the court without a jury. On the findings of the
court, a judgment was rendered for the plaintiff for $7,825.62. The
defendants brought the case to this Court by a writ of error, and
the judgment was reversed, and the cause was remanded to the
circuit court with directions to award a new trial. The decision of
this Court is reported in
96 U. S. 96 U.S.
324. The only question there presented and determined was as to the
proper construction of a written contract made between the parties
January 2, 1865, in a particular not now important. The
construction put by the court below upon that contract was held to
have been erroneous. The case was tried a second time before a jury
in April, 1879. The jury found a verdict for the plaintiff for
$12,816.53, and a judgment thereon was rendered against the
defendants. To review and reverse this judgment, the present writ
of error has been brought.
The plaintiff, to maintain the issues on his part, read in
evidence a stipulation, signed by the respective attorneys, whereby
the defendants admitted the sale and delivery of shovel handles
shipped to the defendant's firm and received by it at North Easton,
Massachusetts at the dates and in the
Page 106 U. S. 344
quantities therein set forth, being, in 1865, 15,607 dozen in 6
items, in May and July; in 1866, 10,188 dozen in 13 items, in June,
July, August, and September, and 2,852 dozen in 3 items, in
November and December, up to the 20th; in 1867, 33,814 dozen in 37
items, in every month but January, November, and December, and in
1868, 11,113 dozen in 11 items, in April, May, July, September, and
October. The stipulation stated that the dates given were the dates
of the shipment by rail from Michigan and Canada; that the dates of
the receipt by the defendants at North Easton were fifteen days
later than the several dates of shipment, and that the plaintiff
admitted payments on account of said handles at the dates and in
the sums specified thereafter in the stipulation, the payments
amounting to $83,153.48. The stipulation concluded with this
clause:
"The question of the quality of the handles delivered as
aforesaid, and all other questions of fact not stipulated, are left
open to the jury and for other and further evidence."
The plaintiff was then examined as a witness on his own behalf.
On his cross-examination, he testified that there was a contract
signed by the parties for 1865 for handles. The contract being
shown to him, he "identified" it, as the bill of exceptions states,
and it was read in evidence by the defendants. It bore the date of
January 2, 1865. The plaintiff rested his case, and the defendants
introduced testimony and rested their defense. One of the
defendants testified that he made the contract of 1865, and it was
made in the evening, and he stated who were present. Then the
plaintiff, being recalled, testified without objection that the
contract dated January 2, 1865, was not signed on that day -- on
the evening of that day. He was then asked, "When was that contract
signed?" The defendants objected to the question on the ground
that
"it was irrelevant and immaterial, and there had been no
previous denial by affidavit or otherwise of the execution of the
contract, and it was incompetent."
The plaintiff replied that the fact of the execution of the
contract was not denied, "but he proposes to show the time of the
execution of the contract was on Sunday, which avoids the
contract." The court overruled the objection, and the defendants
excepted. The witness then answered that the contract was
Page 106 U. S. 345
signed and delivered on Sunday, January 1, 1865, stating the
hour and the place, and giving particulars as to who were present
and what was done. The defendants then gave testimony by three
witnesses to contradict the plaintiff. The defendants now contend
that the court erred in permitting the plaintiff to testify that
the contract was executed on Sunday in view of the then situation
of the case and what had transpired on the trial; that he had given
evidence as to its execution and allowed it to be put in evidence
without suggesting any infirmity in it, and that the defendants
would necessarily be surprised by such testimony. The defendants
also claim that under a rule of court governing the pleadings and
practice in Michigan, where a defendant insists on a claim by way
of setoff, founded on a written instrument, he cannot "be put to
the proof of the execution of the instrument or the handwriting" of
the opposite party, unless an affidavit is filed "denying the
same;" that the failure of the plaintiff to file such affidavit was
an admission of the execution of the instrument in manner and form
as set up, and as being of the date of January 2, and that the
testimony went to show that the contract set up was not
executed.
The only ground alleged at the trial for the incompetency of the
evidence was that the execution of the contract had not been denied
by affidavit. Assuming that the rule of court referred to can be
taken notice of by this Court, it not being set forth in the record
and there being no statement in the record that the affidavit
referred to was required by any rule of court, and assuming that it
is to be inferred that there was not any such affidavit, it not
being set forth in the bill of exceptions that there was not, we
are of opinion that the rule cited refers only to proof of the
genuineness of a seal or of handwriting, and does not refer to any
matter which goes to show the invalidity otherwise of an
instrument. Such a provision in a rule of court or in a statute is
not uncommon, and whenever it is expressed in language such as that
now presented, it has never that we are aware received any other
construction. In the case of
Pegg v. Bidleman, 5 Mich. 26,
Pegg and another were sued on a note signed "S. Pegg & Co."
They appeared and pleaded the general issue, but did not deny on
oath the
Page 106 U. S. 346
execution of the note. Judgment was given against them without
proof that they "composed the firm of S. Pegg & Co. and
executed the note." It was held that as the defendants had appeared
and the declaration was against them as individuals and did not
allege they were partners, the question was simply whether they
executed the note by the name subscribed to it, and that they must
be taken to have admitted that the note was executed by the parties
declared against. The decision was that the admission covered the
fact that the signature was that of the parties sued. If the
parties be sued as partners, the admission that the signature is
their signature as partners necessarily admits that they were
partners. This was the principle applied in
Thomas v.
Clark, 2 McLean 194, and
Pratt v. Willard, 6 McLean
27. In
Curran v. Rogers, 35 Mich. 222, a written contract
was signed in the name of a firm, the two partners in which were
sued on the contract. The general issue was pleaded without any
affidavit. One of the firm sought to prove that the other, who had
signed the firm name, had no authority to do so. It was held that,
as the declaration set out the contract verbatim, and alleged it to
have been jointly executed, its execution was admitted as to both
defendants. There is nothing in these decisions which goes to show
that the plaintiff, notwithstanding anything in the language of the
rule of court invoked, could not prove that the contract was in
fact signed at a date different from that appearing on its face.
The evidence did not go to show that it was not dated January 2
when it was signed, but went to show that, though dated January 2,
it was signed on January 1. It admitted the execution of the
contract, but tended to avoid it by proving a fact in regard to it
which did not appear on its face, and which went to the merits.
This was competent evidence, and was not irrelevant or immaterial.
All question as to surprise, or as to reopening the case, or as to
the order of proof, were matters of discretion not reviewable
here.
Another written contract was shown to the plaintiff, and
"identified by him," and put in evidence by the defendants, dated
December 25, 1866. It provided for advances by the defendants to
the plaintiff, and for their acceptance of his drafts, and for his
payment to them of "2 1/2 percent commission for accepting his
Page 106 U. S. 347
drafts." On the language of the contract so put in evidence a
question was raised as to whether the commission was to be paid on
all drafts accepted, or only on those which were in excess of
shipments of handles. On his redirect examination, when first
called, the plaintiff stated without objection that he had had a
duplicate of the contract, which was destroyed by fire; that the
copy so introduced was not an exact copy of the one he had in its
reference to the 2 1/2 percent commission; that the one he had was
made by one of the defendants; that drafts for handles shipped he
was to pay no commissions on, and that those for advances before
shipments he was to pay commissions on. He was then asked, "What
change was made in the duplicate which you had?" This question was
objected to by the defendants on the ground that it was incompetent
and irrelevant, "and, there having been no denial of the execution
of this contract as pleaded and given notice of by the defendants,
it is incompetent to vary it by parol." The objection was
overruled, and the defendants excepted. The witness answered that
the word "advanced" was inserted after the word "drafts," so as to
read "2 1/2 percent commission for accepting his drafts advanced."
The defendants contend that the evidence went to a denial of the
execution of the contract, and was therefore incompetent under the
rule of court before referred to. The remarks before made apply to
this point also. The evidence went to show what the actual written
contract between the parties was. It did not go to show that the
defendants' copy was not actually signed by the parties. The one
copy was as competent evidence of the real contract as the other
was. What the plaintiff had testified to in regard to the contents
of his original of the contract was admitted without objection and
permitted to stand, and no motion was made to strike it out. The
evidence sought by the question objected to only went to explain
the previous evidence.
A question having arisen as to the quality of the handles
furnished to the defendants by the plaintiff in 1867 and 1868, a
witness for the plaintiff was asked as to the quality of the
handles furnished by the plaintiff to the Old Colony Company in
1867 and 1868. The defendants objected to the question on the
ground that it was irrelevant and incompetent, and not
Page 106 U. S. 348
admissible to show the quality of the handles furnished to the
defendants. The plaintiff's counsel then stated that he proposed to
show, in connection with the offered testimony, that the handles
were of the same general quality as those furnished to the
defendants. Thereupon the objection was overruled and the
defendants excepted, and the witness answered that the quality of
the handles sent to the Old Colony Company in 1867 and 1868 was
good. Evidence had been given for the defendants that the quality
of the handles furnished by the plaintiff to the defendants in 1867
and 1868 was inferior to the quality of those he had furnished in
previous years. The plaintiff subsequently gave evidence tending to
show that the handles furnished by him to the defendants in 1867
and 1868, and the handles furnished by him to the Old Colony
Company in 1867 and 1868, were of the same kind and quality. After
this evidence was given, there was no motion to strike out the
evidence so objected to, or to rule upon its admissibility. The
evidence objected to was admissible.
Alleged errors in the charge to the jury and in refusals to
charge as requested are urged by the defendants. As to the request
to charge respecting the right of the defendants under the contract
of January 27, 1866, to charge the plaintiff back with the full
value of such handles as broke in the process of bending, it is
sufficient to say that the record discloses that there was a
settlement between the parties respecting the 172 dozen handles
charged back in 1866 under that contract, and that there was really
no question for the jury as to those handles. If the charge given,
and the refusal to charge as requested, had the effect to withdraw
from the jury the consideration of the 172 dozen, it only effected
the result required by the settlement, and worked no injury to the
defendants.
In regard to the refusal to charge that the plaintiff could
recover $1.37 1/2 per dozen for only such handles delivered between
October 8, 1866, and April 20, 1867, as he had carried out at that
price in his bill of particulars, and to the charge to the
contrary, it is sufficient to say that the bill of particulars is
not in the record, and there is no statement in the bill of
exceptions as to its contents, and that when, in the course of
the
Page 106 U. S. 349
evidence, the claim was made by the plaintiff for $1.37 1/2 per
dozen for the handles delivered between those dates, the defendants
objected that there were three items in April, 1867, carried out in
the bill of particulars at $1.25 per dozen, and the plaintiff then
and there claimed that the bill of particulars contained a mistake
in that respect. The charge of the court was that while the
plaintiff could not recover for any more handles than his bill of
particulars set forth, he was not bound by a mistake in carrying
out the rate or price, but could show what he was actually to have.
We see no error in this, under the circumstances.
The request made to charge as to the operations of 1868 was
granted, and the instruction given is not open to the objection
that the price for 1868 was fixed by the court and was not left to
the jury to determine.
Although this Court reversed the first judgment and remanded the
cause for a new trial, and a new trial has been had, with a new
judgment, the plaintiffs in error now urge, without having raised
the point before, that this Court, instead of having awarded a new
trial, should have rendered a judgment for the defendants below on
the findings made by the circuit court at the first trial, and that
it should now do so. The question is not open for this Court to
review on this writ of error the judgment it rendered on the former
writ of error. That judgment has been carried into effect, and the
parties who procured it have enjoyed the benefit of it in the new
trial they have had.
Judgment affirmed.