KEMPER-THOMAS CO. v. DEITZ. 1. PLEADING-SALES-INDEBITATUS COUNT EVIDENCE. In an action in assumpsit upon indebitatus count for goods sold and delivered, the whole transaction is open to any proof showing a right to recover money actually due as alleged, whether under a contract of sale as originally made, as modified, waived in any particular, or beneficially performed in part. 2. SAME COUNTS-BILL OF PARTICULARS. Plaintiffs' count followed by a brief bill of particulars referring to a written contract, stating what goods were sold and delivered to defendants at their request, when and how ordered, when delivered, and the amount claimed due, held, not a special count on a particular contract, but evidently intended to meet the suggestions upon that subject found in section 2, chap. 14, judicature act (section 12454, 3 Comp. Laws 1915), and Circuit Court Rule No. 22. 3. SALES-DELIVERY. Delivery to the carrier is delivery to the purchaser of merchandise, in the absence of an agreement to the contrary. Error to Washtenaw; Sample, J. Submitted October 10, 1918. (Docket No. 27.) (Docket No. 27.) Decided December 27, 1918. Assumpsit by The Kemper-Thomas Company against Oswald Deitz and another, copartners as O. Deitz & Son, for goods sold and delivered. Judgment for defendants on a directed verdict. Plaintiff brings error. Reversed. Arthur Brown, for appellant. Cavanaugh & Burke, for appellees. STEERE, J. On January 19, 1916, plaintiff's traveling salesman solicited a "Christmas goods" order See note in 22 L. R. A. 415. from defendants for their next ensuing Christmas trade. After examination of his samples an order was given for 1,000 "frame purses," style 3551, amounting to $130. A form of order furnished by plaintiff's salesman was then filled out by him and signed "O. Deitz & Son," by defendant Oswald Deitz, who was given a copy. This order was also apparently signed by plaintiff, through P. O. Camburn, "Salesman No. 102" and read in part as follows: "How to ship: Freight (on or about) Dec. 1st, * * * F. O. B. cars our factory, *** We will ship goods as close to dates desired as possible, but we cannot bind ourselves to exact dates, except when specially ordered." Plaintiff did not ship the goods within the time specified. On December 18, 1916, it wrote in reply to a letter from defendant as follows: "CINCINNATI, OHIO, Dec. 18, 1916. "MR. OSWALD DEITZ, "Ann Arbor, Mich. "Dear Sir: We are in receipt of your letter of the 16th relative to your order for purses. "In reply beg to advise that these purses are being finished up today and will go forward to you immediately." Defendants' letter of the 16th was not produced by plaintiff, but its counsel testified that Oswald Deitz told him he wrote plaintiff about that time, stating he bought the purses for his Christmas trade, and "if they had not sent the goods by freight so that he would be sure to get them at Christmas, he wanted them to send them by express." Defendant admitted writing such a letter. In his cross-examination he was asked about this letter and answered as follows: "If they had not sent them by freight, they were to send them by express so that you could get them before Christmas. "A. Yes, to hurry them up." On December 19, 1916, plaintiff delivered the goods to the express company at Cincinnati, Ohio, carriage prepaid, directed to defendants at Ann Arbor, Mich., where they did not arrive until December 29. Defendants refused to receive or accept them because too late for their Christmas trade and so advised plaintiff. Correspondence followed between the parties, in concluding which plaintiff wrote defendants on January 5, 1917: "The chances are had we made a freight shipment, you would not have received them yet. "We insist upon our pay as per contract." The claim was then put in the hands of counsel and, payment being refused, this action followed. Plaintiff's declaration is as follows: "The plaintiff says: "1. That it is a corporation organized and existing under the laws of the state of Ohio. "2. That the defendants are copartners engaged in business in Ann Arbor, Michigan. "3. That the defendants are indebted to the plaintiff in the sum of $130.41 for goods sold and delivered by the plaintiff to the defendants at their request, as follows: "1000 frame purses, style 3551, ordered in writing on January 19, 1916, and delivered on December 18, 1916 $130.00 Freight on same Total $130.41 "4. Whereas the plaintiff claims a judgment for the sum of $200." Defendants pleaded the general issue and gave notice that the goods were ordered for their Christmas trade of 1916; that plaintiff neglected and failed to ship and deliver the purses ordered in accordance with the terms of its contract, but delayed delivery until after Christmas when the goods were of no value to defendants who then and for that reason would not accept and "never have received the said goods." Upon the trial objection was made by defendants' counsel to any testimony under plaintiff's declaration as to a subsequent modification of the contract declared upon, in relation to which no waiver of any of its terms is pleaded. Opportunity was given to amend the declaration, which plaintiff's counsel did not desire to do, and in reply to the court relative to plaintiff's claim under its declaration said, "We rest on the declaration we have." On conclusion of the testimony each of the parties requested a directed verdict, and after argument the court directed a verdict for defendants. The assigned errors of the court complained of are formulated in the brief of plaintiff's counsel as follows: "1. It held that there was no waiver of the original time of delivery by reason of defendants' subsequent request for shipment. "2. It held that the delay caused by the carrier was chargeable to the plaintiff, notwithstanding that it had made full and complete delivery to the defendants when it delivered to the carrier." Defendants contend that all plaintiff's evidence as to subsequent waiver of its admitted breach of the contract was inadmissible under the declaration; that even under the evidence erroneously admitted there was no waiver and defendants' letter of December 16th, written after breach of the contract "to hurry them up," was at most but a waiver conditioned upon the goods being received by them before Christmas. • The written order introduced in evidence by plaintiff at the trial showed these goods were to be shipped on or about December 1st. The testimony showed they were shipped by express, prepaid, on December 19th, and plaintiff introduced evidence against objection showing they were so shipped pursuant to defendants' letter of December 16th. Defendants contend this evidence was not admissible because waiver or modification of a contract declared upon cannot be shown unless pleaded. Conceding this general rule as applied to a special count on a particular contract, plaintiff contends it was not required to and did not declare specially on any alleged contract; but declared generally and set up a cause of action under a common indebitatus count in assumpsit for goods sold and delivered, thus leaving the whole transaction open to proof. Plaintiff's claimed cause of action is a money demand for the price of goods sold and delivered, necessarily involving a contract of sale as originally made or modified, but which can be recovered under the common counts in assumpsit without specially pleading the contract. So pleaded, the whole transaction is open to any proof showing a right to recover money actually due as alleged, whether under a contract of sale as originally made, as modified, waived in any particular or beneficially performed in part. Allen v. McKibbin, 5 Mich. 449; Begole v. McKenzie, 26 Mich. 470; McGraw v. Sturgeon, 29 Mich. 426; Ladue v. Seymour, 24 Wend. (N. Y.) 59; Kerstetter v. Raymond, 10 Ind. 199. In 2 Smith's Leading Cases, 34, it is said: "If there has been a special contract which has been altered or deviated from in particulars, by common consent, general assumpsit will lie." Clearly the gist of plaintiff's short count is indebitatus assumpsit “for goods sold and delivered by plaintiff to defendants at their request" (purely a common count), followed by what might be regarded as a brief bill of particulars, evidently intended to give in outline such information regarding the transaction as would reasonably inform defendants of the nature of the case they were called to defend, to meet the suggestions |