DocketNumber: Docket No. 20
Citation Numbers: 166 Mich. 537
Judges: Bird, Hooker, McAlvay, Moore, Ostrander
Filed Date: 7/5/1911
Status: Precedential
Modified Date: 9/8/2022
(after stating the facts). We construe the writing in question as an offer of plaintiff to sell and to transport lumber. There is no reason for saying that plaintiff would have offered the lumber without the provision for carriage, none that defendant would have purchased the lumber unless plaintiff would transport it. The right of defendant to charter a boat to carry the lumber was subject to a disagreement about carrying charges after October 1st. There was no such disagreement. There appears to have been no reason, except that the cargo was a small one, for refusing to deliver the lumber in question at Cleveland as other cargoes had been delivered. There was a refusal by plaintiff to transport the lumber and a proposal to make some other arrangement. No other arrangement was made.
The contention of the plaintiff that a new arrangement was made and receded from by defendant, if it is important in an action for damages for breach of the original contract, is not supported by the testimony. Plaintiff’s letter of December 12th does not purport to be an acceptance of defendant’s proposal that the lumber be carried over at the risk and expense of plaintiff and delivered in the spring. And we find no reason for saying that this proposal of defendant was a continuing one. It had been emphatically refused, and after it was made plaintiff had indicated that as it construed the contract it owed no duty to defendant to transport the lumber. Considered as an offer on the part of plaintiff to deliver the lumber in the spring, it was refused. The contention that there is involved here the question whether delivery of the lumber in the spring would be a reasonable performance of the contract is opposed to the entire tone and spirit of the correspondence which was carried on. The case is disposed of by saying that we do not find any testimony tending to prove a breach by defendant of the contract sued upon.
It follows that the judgment ought to be affirmed. It is so ordered.