Valley City Milling Co. v. Prange ( 1900 )

Grant, J.

(after stating the facts). One Reed was the subcontractor under Prange to furnish the gravel. Defendant’s counsel insists that there was no evidence that Reed was Mr. Prange’s agent, or that Mr. Prange, either through himself or his agent, made an examination of the gravel-pit prior to the execution of the contract. Counsel also objects to the finding that Rowe, plaintiff’s agent, did not represent that defendant would find sufficient gravel of the kind and quality required for the purpose of the improvement of Plainfield avenue. We think there was ample testimony upon which to base the finding. There was a clear conflict in the evidence, and a substantial denial by Mr. Rowe of the representations charged to have been made by him. Counsel seeks to bring this case within the doctrine of Gibson v. Pelkie, 3? Mich. 380. To bring the case within the rule there enunciated, it must conclusively appear that there was no subject-matter for the contract. The same principle is found in Gribben v. Atkinson, 64 Mich. 651 (31 N. W. 570), where parties contracted with reference to the mutual belief that there was iron ore in the land. It was found that there was none. These cases, however, do not govern this. Here there was gravel suitable for one of the purposes for which it was intended. Plaintiff refused to sell by the load, for reasons which appeared to be satisfactory to both parties. The defendant had the right to remove the shade trees upon the place, and to dig up the surface, in order to find and remove the gravel. Plaintiff refused to guarantee the quantity or the quality, but offered to sell the defendant the right to remove all the gravel upon the premises, if sufficient could be found for the purpose for which the defendant wanted it. He, through his agents, made an investigation. He was willing to assume the risk, and made the contract with the distinct understanding that the land might not contain gravel of the quantity and quality desired. There was no total failure of the subject-matter, such as constitutes a failure or lack of good consideration.

Judgment is affirmed.

The other Justices concurred.