219 Mich. 643, 189 N.W. 923 (1922)
On the 16th day of September, 1916, Richardson Lumber Company and Western Cedar & Lumber Company executed a written contract for the sale of cedar ties located on the Boyce property in Essexville.1
The agreement estimated the quantity at 11,500 ties to be sold at 42 cents each on the ground as they stood, with payment to be made in cash as soon as the ties had been counted and with no rejects permitted.
At the time the acceptance was signed, the parties discussed the terms of payment and title.2 Richardson stated that the ties would remain the seller's until paid for.3 Hoey indicated he would arrange for counting and payment at the Bay City office and would not touch the ties until they were counted and paid.4
On September 19, 1916, the defendants began loading and moving the ties from the property.5 They removed 1,721 ties before the remainder, which had not yet been counted, were destroyed by fire.6
The defendants tendered payment for the 1,721 ties at the contract price in full settlement of their obligations.7 The tender was refused, and Richardson Lumber Company brought suit to recover the contract price for the entire estimated quantity of ties.8 The trial court entered judgment for the plaintiff in the full amount claimed.9
The defendants asserted that title had not passed under the contract.10 The plaintiff had fraudulently concealed the imminent danger from fire at the ties' location.11 The parties had been mutually mistaken about the safety of the ties from fire destruction.12
Whether the written contract passed title to the ties to the defendants upon execution?13
Under the Uniform Sales Act, Rule 1, where there is an unconditional contract to sell specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery or both be postponed.14 Michigan decisions establish that where nothing remains to be done by the vendor to ascertain the identity, quantity or quality of the goods sold, the title passes when the contract is made.15
Yes. On the 16th day of September, 1916, the parties executed a written contract for the sale of cedar ties located on the Boyce property in Essexville. The agreement estimated the quantity at 11,500 ties to be sold at 42 cents each on the ground as they stood, with payment to be made in cash as soon as the ties had been counted and with no rejects permitted. The contract was unconditional and for specific goods in a deliverable state.16
Nothing remained to be done by the seller before the ties could be loaded and delivered.17 The identity, amount, quality, price and time of payment were definitely fixed.18 Therefore, under Rule 1 of the uniform sales act and controlling Michigan precedent, title to the ties passed to the defendants at the time the contract was made unless a subsequent verbal agreement altered that result.19
The written contract passed title to the ties to the defendants upon execution.20
Whether the plaintiff fraudulently concealed from the defendants the dangerous location of the ties and the imminent danger from fire?21
Fraudulent concealment requires that the plaintiff knew of a material fact, had a duty to disclose it, and intentionally concealed it to induce the contract. The court reviews whether jury instructions on this claim correctly stated applicable law.22
No. The defendants asserted that the plaintiff with knowledge of the facts fraudulently concealed from the defendants that the ties were located in a place where there was imminent danger from fire.23 The circuit judge instructed the jury on this claim.24 The instructions correctly stated the law applicable to the claim of fraudulent concealment.25 No error appears in the handling of this defense or in the refusal to find for the defendants on this ground.26
The plaintiff did not fraudulently conceal from the defendants the dangerous location of the ties and the imminent danger from fire.27
Whether there was a mutual mistake of fact regarding the dangerous location and liability of the ties to destruction by fire that would avoid the contract?28
A party who has given apparent consent to a contract of sale may avoid it if the assent was founded upon the mistake of a material fact such as the subject-matter of the sale or some collateral fact materially inducing the agreement. This can be done when the mistake is mutual.29 A present imminent danger existing at the time of contracting that renders delivery impossible constitutes such a mistake going to the entire consideration.30
Yes. At the time the contract was made the fire was near the ties under ground, about to destroy them. The parties believed they were contracting for ties that were safe from fire and could be delivered.31 This was a present fact of imminent danger that did in fact destroy the subject-matter before the defendants could remove the ties by reasonable diligence.32
The mistake went to the entire consideration of the contract.33 The circuit judge erred in refusing to submit the claim of mutual mistake to the jury as a defense.34 If the defendants' claim as to the facts is true the defendants would have a right to rescind and would not be liable except for the ties actually delivered.35
There was a mutual mistake of fact regarding the dangerous location and liability of the ties to destruction by fire that would avoid the contract.36