B. F. Goodrich Rubber Co. v. Sewell Cushion Wheel Co.

Fellows, J.

(after stating the facts). Three grounds are urged by plaintiff in its. brief for a reversal of the judgment, viz.:

(1) That the court erred in refusing to strike out the testimony of the witness Robinson.

(2) That the court erred in refusing to direct a verdict for plaintiff.

*603 (3) That there was prejudicial argument by defendant’s counsel.

1. The defendant called as a witness F. W. Robinson, a chemist, who testified that he had analyzed and made tests of the rubber which had been recured by plaintiff, and compared it with rubber received from plaintiff about the same time, which had not been re-cured, and gave the results of such analysis and tests. His testimony was received without objection by plaintiff’s counsel, who cross-examined him fully. At the close of the case, counsel moved to strike out the testimony of this witness. Error is assigned on the refusal of the court to grant this motion. The objection came too late. The plaintiff could not be permitted to lie by and experiment upon the testimony and ascertain what might come of it; for benefit or disadvantage, and if it turns out disadvantageous exclude it upon a motion to strike out. Not only was the testimony on direct examination admitted without objection, but counsel fully cross-examined the witness, defendant re-examined him, and plaintiff again cross-examined him, and not until after other witnesses had been called and examined and both sides had rested was the motion to strike out the testimony made. Under these circumstances, plaintiff had no right to the exclusion of the testimony. McWilliams v. Railway Co., 146 Mich. 216 ( 109 N. W. 272 ); Farmers’, etc., Nat. Bank v. Greene, 74 Fed. 439 ( 20 C. C. A. 500 ); Dugger v. McKesson, 100 N. C. 1 ( 6 S. E. 746 ); King v. Haney, 46 Cal. 560 ( 13 Am. Rep. 217 ); East Tennessee, etc., R. Co. v. Turvaville, 97 Ala. 122 ( 12 South. 63 ).

But we think the testimony of the witness Robinson was material to the issue. It was the claim of the defendant, as we shall presently see, that the rubber was taken to Akron to be recured, with the understanding and agreement that when recured it should be up to *604 the standard of rubber theretofore furnished to defendant by the plaintiff. There was testimony to sustain this claim, as we shall discuss under the next objection, and, such being the case, it was competent to show that the recured rubber was not up to the standard of the rubber before then sold by plaintiff to defendant.

2. It was the claim of the plaintiff that the arrangements under which the rubber was recured amounted to a sale by sample; that it submitted a sample of the recured rubber to defendant, and defendant approved the sample; that the rubber was recured and redelivered to defendant; and that it corresponded to the sample. Plaintiff’s testimony sustained this theory. The defendant, however, did not admit that this was the arrangement, but, on the contrary, it insisted that it was agreed that the recured rubber was to be as good as that previously furnished. It is necessary to quote but one sentence from Mr. Sewell’s testimony to show that defendant’s claim was supported by proof. He said:

“I talked with Mr. Noble and told him if they could recure this rubber and make it as good as his previous rubber that we would accept it again.”

There was other testimony coming from witnesses, and found in the correspondence, supporting this theory. There was also testimony tending to show that the sample of recured rubber was as good as that previously furnished, and that the recured rubber was not. We also find, in the testimony of defendant’s production manager, the following testimony:

“Q. Did you find the recured rubber the same as the sample?

“A. No, sir.”

While other portions of the testimony of this witness may be said to be inconsistent with this answer, the jury were the triers of the facts, and it was for *605 them to determine what weight and credit should be given this testimony. Lonier v. Savings Bank, 153 Mich. 253 ( 116 N. W. 1088 ). Clearly, a case was made for the jury.

3. During the argument of the case by defendant’s counsel, objection was made to the line of argument he was pursuing, and the objection was promptly sustained, and the argument proceeded no further. We are not prepared to hold that the argument of defendant’s counsel, at the time of the objection, was improper. It is not necessary for us to determine that question. Plaintiff’s counsel was evidently satisfied With the course pursued and asked no instructions from the court to disregard the argument. Samberg v. Knights of Maccabees, 158 Mich. 568 ( 123 N. W. 25 , 133 Am. St. Rep. 396 ).

The judgment is affirmed, with costs to defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.