Spaulding Lumber Co. v. Stout

Ltokt, O. J.

The testimony in the case is voluminous and conflicting. There is no controversy concerning the terms of the original contract entered into by the parties in August, 1888. The principal controversy is upon the questions of the making of the alleged modified contract of September, 1888, and the accuracy of the alleged inspection-report of the posts at Lincoln, which are the basis of the judgment. "We can make ho extended statement or enter into any extended discussion of the testimony. It must suffice to say that the testimony has been sufficiently examined, and we are satisfied from such examination that the findings of the referee are supported by a preponderance of the testimony, and were properly confirmed by the court if the defendants are bound by the modified contract.

One IToile acted as agent for defendants in making the modified contract. His authority to do so and to bind the defendants thereby is denied. It quite satisfactorily appears that he was the general agent of defendants to purchase paving posts in northern Michigan, and that it was necessary thus to modify the contract in order to obtain from plaintiff more than about thirteen car loads of posts. But in addition to this, and as tending to prove that the defendants accepted and adopted the modified contract, it appears that the inspection report made by their chosen inspector, and accepted and acted upon_by them, made no discrimination of posts of greater diameter and length than five inches and eight feet, but massed or .aggregated all such under one head. It also classified all the remainder of the posts under the three other specific heads of the modified contract, to wit: four inches bj7 eight feet; four inches by seven feet; and five inches by seven feet. All this is entirely inconsistent with the theory that the original, and not the modified, contract was being acted upon by defendants. The inspection report furnishes no adequate basis for ascertaining the price of the posts under the original contract. We have no, difficulty in holding defendants bound by the modified contract.

The judgment of the circuit court is fully supported by the findings of the referee. Those findings being upheld, .the judgment cannot be disturbed.

By the Court — Judgment affirmed.