"WILL SMITH, Esq., "CHICAGO, July 31, 1895. "523 W. 7th St., Cincinnati, O. "Dear Sir: We are now ready to make arrangements with a good man for the road, to represent us in Michigan, Indiana, and part of Ohio. If you are open for an engagement, we think it would pay you to take a run up to Chicago, and see us, at once. Kindly write us when you will be up, and oblige, "Yours, "FRED K. MAUS. "If you cannot come, can you give us the names of one or two well-posted men in your line who could?" "Mr. WILL SMITH, “CHICAGO, August 19, 1895. "523 W. 7th St., Cincinnati, O. "Dear Sir: We will start you out on the road at the rate of $150 per month to January 1, 1896. If, after that time, you are worth more money to us, we will be only too glad to pay you what you are worth to us; and you can continue right along with us after that, as long as you can make your services valuable to us, at a salary satisfactory to you and ourselves. We want you right away, and, if possible, come up this week; and it will take at least a week or 10 days to post you, and get samples ready. When will you be here? Come at once, if possible. Address, "FRED K. MAUS, 66 "F. K. MAUS, "Care Kelley, Maus & Co." "CINCINNATI, August 20, 1895. "Chicago, Ill. Dear Sir: Your proposition to enter your employ for the next season at hand, and I accept; and, as I told you in our interview, would come just as soon as possible. On account of the absence of my employers, I cannot give you date, but on their return, the last of the week, will notify you at once. I am, "Yours truly, "WILL SMITH." Upon the trial, counsel for the defendant contended that this correspondence did not constitute a contract, because the letter of August 20th was not an acceptance of the proposition contained in the letter of August 19th, for the reason that it contained stipulations varying the proposition. They introduced a letter dated August 27th, which is claimed to show that defendant did not understand it as an acceptance. It is as follows: 'Care Rattarmann & Luth, "Cincinnati, O. "Dear Sir: Your favor of the 20th received during the writer's absence from the city. We would like to know when you will be here, as we desire to get the matter settled up at an early date. If we engage you, we wish to get you started out on the road. you promptly, and oblige, Please let us hear from "Yours truly, "F. K. MAUS. " They also sought to show by the cross-examination of the plaintiff, and by the testimony of other witnesses, that the plaintiff did not go to work upon the terms stated in these letters, but that he visited Chicago, as requested, and a new contract was made there, differing from that contained in the letters, especially as to the period of his employment. The letter of August 19th cannot be construed as unqualifiedly offering the plaintiff employment beyond January 1st. But it was an offer to the plaintiff to enter the defendant's service, with an understanding that it might be for a longer period; and we think the reference to the "next season, " in his letter, is to be read in connection with that offer, and should not be considered a variance from the proposition in that respect. There was, however, nothing to prevent the parties from abandoning this arrangement, and, by mutual consent, making a new one, when the plaintiff visited Chicago. We think the defendant should have been permitted to show that such was the case, if it was able to do so. Seaman v. O'Hara, 29 Mich. 66; Westchester Fire Ins. Co. v. Earle, 33 Mich. 153; Roger Williams Ins. Co. v. Carrington, 43 Mich. 256; Barton v. Gray, 57 Mich. 622; Blagborne v. Hunger, 101 Mich. 375. The judgment is reversed, and a new trial ordered. The other Justices concurred. WYCKOFF, SEAMANS & BENEDICT v. BISHOP. 1. SALE-AGENCY-SET-OFF. A purchaser of typewriters at an agreed price, to be resold by him, cannot interpose by way of set-off, in an action on a bond given by him on appeal from a judgment against him for machines purchased, a claim for work performed in adjusting and aligning the machines, where there was no agreement that he should be paid therefor, and the seller immediately repudiated any liability on being notified of the claim. 2. SAME EXCLUSIVE RIGHTS-COMMISSIONS. An agent for the sale of typewriters, who, under his contract, was to receive the benefit of all sales made in a given State, is not entitled to commissions on the sale of a machine by the maker to a purchaser in another State, merely because it is shipped by the purchaser to a branch office within the agent's territory. Error to Wayne; Hosmer, J. Submitted October 15, 1897. Decided December 21, 1897. Debt by Wyckoff, Seamans & Benedict against A. Cushman Bishop, as principal, and Robert E. Hull and C. Edward Richmond, as sureties, upon an appeal bond. From a judgment awarding a set-off to defendant Bishop, plaintiff brings error. Reversed. O. M. Leonard (Julian G. Dickinson, of counsel), for appellant. MOORE, J. The plaintiff in this cause, a corporation, sued defendant Bishop upon a claim assigned to it by the firm of Wyckoff, Seamans & Benedict against Bishop, and obtained judgment. The case was appealed to the Supreme Court by Mr. Bishop, and the judgment of the court below was affirmed. Wyckoff, Seamans & Benedict v. Bishop, 98 Mich. 352. When Mr. Bishop appealed the case, he gave a bond signed by himself as principal and by Mr. Hull and Mr. Richmond as sureties, conditioned, among other things, to pay the judgment and costs if the judgment of the court below was affirmed. The judgment and costs have not been paid. Plaintiff brought this action upon the bond for the amount of the judgment and costs. Defendants Hull and Richmond interposed the plea of the general issue. Defendant Bishop pleaded the general issue, and gave notice of setoff. The items of set-off are as follows: To adjusting and aligning 572 typewriting machines from time to time between May 1, 1889, to October 31, 1891.. $572 00 To commission on typewriter sold G. & M. Transportation Co.. 34 00 To check 51 45 Interest on the above amounts from March 21, 1892. The plaintiff asked the court to direct a verdict in its favor for the amount of the judgment and costs recovered in the case which was here. The court instructed the jury that they must find a verdict for the plaintiff for the amount of costs recovered in that case, but that they might set off against the judgment defendant Bishop's claim of set-off, if they found he had established it by the proof. The jury returned a verdict for the plaintiff for the amount of costs, but wiped out the judgment recovered by it by allowing that as the amount of the set-off. Plaintiff appeals. No argument or brief has been made or filed in this court on the part of the appellee. The record discloses that prior to 1891 Mr. Bishop made an arrangement with the firm of Wyckoff, Seamans & Benedict to sell the Remington typewriting machines and supplies, he buying them outright at an agreed price f. o. b. The first item in the transaction litigated when the case was here before. was a shipment made to him May 2, 1891. Monthly reports were made to him. The last shipment was made to him December 11, 1891, and the last remittance made by him to them was $51.45, sent March 21, 1892. Wyckoff, Seamans & Benedict claimed there was due them at that date $320. This not being paid, suit was brought upon it, and it was for that claim that judgment was rendered in their favor in the suit which was appealed here. As already stated, Mr. Bishop bought the machines at an agreed price. His item of set-off is a charge he now makes for work done on the machines to make them fit to put upon the market. The price made to him was for the machines in New York, and he paid the freight from there. The only proof in the case which has any bearing upon his right to recover for the work done upon the machines is his testimony, as follows: I "In 1890, at their office in New York, I had a conversation with them with regard to my claim against them for putting these machines in order. They brought a machine out of the packing room, had it opened in my presence, and I called their attention to the defective manner in which they sent out their machines. The assistant foreman of that department of the factory was there. They were very glad of it, they said. I called the attention of Mr. Seamans more particularly to defects in the machines they were sending out, and illustrated it by this machine that was taken from their packing room. said to them also, 'Gentlemen, you owe me over a year's salary for the time I have already expended in putting your machines in order that they would satisfy customers.' Mr. Seamans says: 'A year's salary; that is not much, $250.' 'Well,' I said, 'I am not working for that sum at this time.' The conversation went on, and he turned to the foreman, and said, 'If Mr. Bishop will draw upon us for his expenses in this trip to New York, we will honor the draft.' No,' I says, 'I will not do that, gentlemen. I will tell you what you do for me. You make and present me with one of those inlaid mother-of-pearl machines, and we will call this trip to New York square.' |