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mony in the case, the cartage, freight and storage amount to, together with the difference in price—in the market price— between what they purchased this whiting for, and what other whiting cost them at that time."

There was no error in admitting the exhibits offered in the case. They contained the contract between the parties upon which both relied, and were indicative of the understanding of the parties, and explanatory of the course pursued by cach, and furnish reasons rebutting the presumptions claimed by plaintiff's counsel. Plaintiff offered to show by the deposition of Mr. Geofley, a member of the plaintiff company, that no guaranty of the quality of the whiting was given. This was objected to, upon the ground that the contract of sale was in writing, and that the writing contained the only evidence admissible upon that subject. The court so ruled, and we see no error in the ruling.

All that was objectionable referred to in the eighteenth assignment of error was fully remedied and removed in the charge of the court given in the paragraph above quoted.

It is claimed the court should have allowed the plaintiff to recover for the value of the forty-two barrels used or sold by defendant in testing the article before he found out its inferiority. Had this been done, simple justice would have required the allowance to the defendant of the damages it sustained in the use it made of the plaintiff's goods in testing the quality, and this, according to the undisputed testimony, was at least $1000, so that it clearly appears the plaintiff has not been injured by the action of the court upon this point complained of. Certainly the defendant derived no benefit from the amount used.

The article appears to have been, however, one which must be used before its quality can be ascertained. It was not apparent upon examination, and in such case it is the right. of the defendant to make use of so much thereof as, under all the circumstances, may become actually necessary for that purpose, without liability for the value of the same if it fails in the test to fulfil the plaintiff's contract. The charge of

the court submitted this part of the case fairly to the jury in the following paragraph thereof:

"The question arises whether the goods were of such a charácter that, upon being received by the defendants, they could determine whether the goods were in accordance with the contract or not. If they were such goods that any one could determine by mere inspection of them, the mere sight of them would determine their character, then there would be no difficulty in this case whatever-there would be nothing to leave to you; and if you find they were such goods, then your verdict must be for the plaintiff. But the contention. of the defendant is that they are not such goods; that they are of such a character that it is impossible, without actually trying them in the process of manufacture, to determine what kind of goods they are; that the question whether they are the kind of goods ordered at all, or whether they are the quality of goods that were ordered, can only be determined by the process of actual use. Now, you have heard the testimony upon that point, and you are to determine where the truth lies; whether that is so, or whether it is not so. If that is so, then the mere acceptance of the goods would not constitute an acceptance, and the defendants would have the right under the law to go a step further and to try to make experiment as to the quality of the goods, and as to whether they were such as fulfilled the contract which had been made between the parties. Now, in regard to this matter of trial, it must be reasonable; it must be such a trial as under all the circumstances of the case the subject-matter-that is, the goods-rendered necessary. The party cannot go on under the guise of making an experiment for an unreasonable length of time, or use an unreasonable quantity of the goods. The party must act with promptitude, and that promptitude must be reasonable in view of all the circumstances of the case. What would be reasonable promptitude in one case. would not be promptitude at all in another case; so that in this case, as in other like cases, your duty will be to determine as to the degree of diligence the defendants used in ascertaining whether this article was the article they had contracted for, and as to whether the quantity which they used was such as did not go beyond a reasonable amount for the purposes of experiment. There were three hundred barrels in all. A certain number of barrels were used; was there too much used? Was the experiment continued so long as to amount to an acceptance of the goods?—as to amount to

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an actual entering into a use of the goods? All these are questions for you to determine, and you must determine them by the testimony in the case. Now, in regard to the degree of promptitude. If you find that the goods were not up to the mark; if you find that the experiments and the use were such as you would assume to be reasonable--then the next question is, what did the defendants do in regard to the goods? It is claimed by them in testimony, and I think virtually admitted, that they stored the goods and notified the plaintiff that the goods were stored and subject to their order, and that was done shortly after or about the time, as I understand it, that these experiments, as they claim they were, ceased. Now, as I say, they must act promptly. They could not retain the goods for any great length of time after they knew that the goods were bad, and yet, by writing a letter of that kind, absolve themselves from paying for the goods. Neither could they continue their experiments too long, or use too great a quantity in their experiment." Benjamin on Sales, § 655 et seq.

On a review of the whole case-and it is all before us-we find no error in the rulings or charge of the court, and The judgment should be affirmed.

COOLEY, C. J. and CAMPBELL, J. concurred.

JOSEPH W. DONOVAN V. HALSEY FIRE ENGINE COMPANY,
JOHN GALLOWAY AND JONAS H. ROWE.

Action on assigned claim to payment for services-Amendment of declaration on appeal-Set-off-Implied assumpsit-Written assignments.

1. A declaration in assumpsit can be amended on appeal from a justice to show that plaintiff claims as assignee.

2. Where notice of set-off was withdrawn it was not error to exclude the testimony it would have covered.

3. Where a corporation has received the benefit of services it cannot repudiate its indebtedness therefor on the ground that its by-laws did not permit it to run in debt without the order of its directors, especially if the directors have never denied liability on that ground.

4. Acceptance of beneficial services raises an implied assumpsit.

5. An assignment of the claims of a laborer against the company which employs him need not be in writing.

Error to Wayne. (Jennison, J.)

June 4.-September 29.

Affirmed.

ASSUMPSIT. Defendants oring error.

Stewart & Galloway for appellants. Assumpsit will not lie unless there is some contract relation express or implied: Woods v. Ayres 39 Mich. 345; nor unless there is a request to pay Child v. Morley 8 Term 610; Stokes v. Lewis 1 Term 20; Naish v. Tatlock 2 H. Bl. 319; Hayes v. Warren 2 Str. 933; Richardson v. Hall 1 Bro. & B. 50; Durnford v. Messiter 5 M. & S. 446; if one has become a surety of another, and is compelled to pay as such surety, the law will imply a promise on the part of the principal to repay: Exall v. Partridge 8 Term 310; Kemp v. Finden 8 Jur. 65; Blaisdell v. Gladwin 4 Cush. 378.

J. B. McCracken for appellee.

SHERWOOD, J. This was an action of assumpsit, commenced before a justice of the peace in Wayne county against the defendant engine company. The plaintiff's declaration was on all the common counts, and on demand he filed the following bill of particulars:

To money paid out in its behalf on bill of J. T. Hurley & Co.,

Money paid on insurance,

Money paid on Chope's judgment,

Money paid on Robert's wages

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$ 24 50

15 00 165 00

75 00

$279 50

2.00

$277 50

The defendant pleaded the general issue and gave notice of set-off for money due on subscription price of two thousand shares of stock, but which set-off was on the trial withdrawn. The justice, on November 26, 1884, gave judgment for plaintiff for $277.50, and $3.50 costs. The defendant com

pany appealed to the circuit, and defendants Galloway and Rowe became its sureties on the appeal-bond. The cause, on appeal, was tried before Judge Jennison, by jury, and the plaintiff again recovered judgment. The case is now before us on error; the record containing a bill of exceptions.

The judgment at the circuit was rendered against all the defendants, and all join in the writ of error. Ten errors are assigned, all of which are relied upon. The plaintiff claims to recover for the items mentioned in his bill of particulars as assignee thereof. The declaration originally was silent upon the subject of his being assignee, and the court allowed an amendment to the effect that he was assignee. We think, under the testimony, the amendment was properly allowed, and we have been unable to discover any error committed in receiving any of the testimony.

Objection was made to excluding testimony to the effect that assignors of the plaintiff and the plaintiff owed the defendant company for stock. We think the ruling was correct. The notice of set-off, the record shows, was withdrawn, and this rendered that testimony immaterial as the issue then stood. The plaintiff testified that he purchased the claims of several different parties, and it tended to show they were claims for work and labor done, money paid, and other things furnished to and for the defendant company, and were valid claims, and that the company had recognized them and its liability therefor. The amount of the claims did not seem to be controverted; the largest one being at the time in judgment against the company. The court submitted both the validity of the claims and the assignments thereof, together with the plaintiff's interest therein, to the determination of the jury, and they found for the plaintiff.

We see nothing in the charge exceptionable. It was based upon the testimony in the case, and there were suflicient facts to support it.

Some point was made on the hearing that by the by-laws of the company no debt could be contracted except by order of the board of directors. There is nothing, however, in this point. There seems to have been no question about the legal

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