Bialy v. Krause , 142 Mich. 158 ( 1905 )

Grant, J.

(after stating the facts). 1. In the first part of his instruction the court instructed the jury:

“ If that machine was sold to the defendant to be satisfactory, if that machine was sold to defendant and guaranteed to be satisfactory to him, the-plaintiff would have to show that the defendant was satisfied with the machine, and it leaves the entire control and determination of the whole matter with the defendant. The plaintiff would have no standing at all, unless the defendant would determine that the machine was just what he wanted and all he wanted and perfectly satisfactory in every way, and in such case only could he be held for it.”

At the very close of his instruction he said:

“If, on the contrary, you should determine that the order that was taken by the agent was approved by Mr. Bialy and the machine sold under the conditions therein stated, then the plaintiff cannot recover.”

Error is assigned upon the instruction that “the order, of course, was subject to the approval and confirmation of the plaintiff, or, if he refused to approve it or to act upon it, that would be the end of it,” and, further, that “the defendant did not sign the order, and all the order amounts to is simply a memorandum of that talk that was between the agent and the defendant,” and that the order was admissible to fix and determine the talk or understanding between them. Defendant insists that the order was a binding contract. We think this position cannot be maintained. Defendant did not sign the contract, and did not ask the agent to sign it. It was not signed by plaintiff or his agent. It can be construed in no other light than that of an order subject to the approval of the plaintiff. Under his theory of the case, and the theory submitted to the jury, he did not accept it, and so notified the defendant. This point is ruled by Bronson v. Herbert, 95 Mich. 478.

2. Complaint is made that the charge of the court as a whole was argumentative and unfair to the defendant. We think it is not subject to this complaint. The two theories were stated to the jury, and we think that the charge as a whole was a correct statement of the law.

Errors are also assigned upon the rejection of certain testimony, which defendant’s counsel insist, if introduced, would have tended to impeach the testimony of the witness Laetz. The alleged impeachment was on an unimportant point, and could not have had a material bearing upon the issue.

Judgment affirmed.

McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.