The court was in error in admitting in evidence the slips alleged to have been made of each item of shortage by the employés of defendant. Defendant said that he could not swear that they were correct, and the makers were not called. The judgment is reversed, and a new trial granted. SNOW v. MCCRACKEN. 1. TRESPASSING DOG-ACTION DECLARATION. FOR DAMAGES-SUFFICIENCY OF In an action for the value of chickens alleged to have been killed by defendant's dog, a declaration averring that the defendant was the "owner or possessor" of the dog, which he well knew to be mischievous and in the habit of killing fowls, is sufficient, it being unnecessary to allege that defendant negligently allowed the dog to run at large. 2. VEXATIOUS APPEAL-COSTS. An additional attorney fee of $30 was allowed to the appellee upon the affirmance of the judgment of the lower court, on the ground that the appeal was frivolous in both the amount involved and the questions raised. Error to Muskegon; Russell, J. Submitted October 23, 1895. Decided November 5, 1895. Case by James Snow against Robert H. McCracken for the killing of plaintiff's chickens by defendant's dog. From a judgment for plaintiff, defendant brings error. Affirmed. J. H. Clark, for appellant. James Snow, in pro. per. (Jerome E. Turner, of counsel), for appellee. 107 MICH.-4 GRANT, J. Defendant's dog killed plaintiff's chickens. Plaintiff sued in justice's court, and filed a declaration, in which it is alleged that the defendant was the "owner or possessor" of the dog, and that he "well knew that his said dog was mischievous, and disposed to and in the habit of killing fowls." Plaintiff recovered a judgment of $22 in the justice's court. Defendant appealed to the circuit court, where a jury rendered a verdict against him, the amount of which is not shown by the record. No objection was made to the declaration in the justice's court, the defendant pleading the general issue. Upon the trial in the circuit court defendant's counsel objected to the introduction of any evidence, upon the ground that the declaration did not state a case, and at the close of the testimony requested the court to direct a verdict for the defendant. The record discloses no reason other than that above given for the objection or for the request. Three objections appear now to be made in his brief: That the declaration does not allege (1) that the defendant was the owner or keeper of the dog at the time of the injury, or (2) that he knew his mischievous habits, or (3) that he negligently allowed him to run at large. The first and second objections are answered by the fact that the declaration does allege that he was the owner or possessor, which is the same as keeper, and that he did know of his vicious habits. The third objection is answered by stating that it is unnecessary to allege that he negligently allowed the dog to run at large. The issue clearly presented by the declaration was that the defendant owned or kept a dog, which killed plaintiff's chickens, and that he knew the character of the dog. If he desired a more specific declaration, he should have demurred. The case is frivolous in both the amount involved and the questions raised. The appeal is therefore vexatious, and plaintiff will be allowed an additional attorney fee of $30 for a vexatious appeal. The other Justices concurred. STODDARD MANUFACTURING CO. v. MILLER. 1. SETTLEMENT-BREACH OF WARRANTY-WAIVER. By assenting to the correctness of an account for machinery purchased, with knowledge of its failure to comply with the warranty under which it was sold, the buyer waives his rights under the warranty. 2. SALE OF MACHINERY-WARRANTY. A contract for the sale of agricultural machinery between the manufacturer and a dealer contained a general warranty, followed by the provision that, if a machine should fail to do good work, notice should be given to the vendor, and time allowed to put it in order, and that the use of a machine for longer than one day, without giving notice of any defect, should constitute an acceptance. Held, that the conditions stated were applicable only to machines resold, and not to those that had not been set up or operated. 3. WRITTEN ORDER-PAROL EVIDENCE. Parol evidence that, by an order for "two square feeding shafts, 4 ten-hoe drills," it was intended only to order two shafts for 10-hoe drills, is admissible, in a suit against the purchaser, to rebut the effect that said order might otherwise have upon his contention that drills of the same kind previously purchased were defective. Error to Sanilac; Beach, J. 1895. Decided November 5, 1895. Submitted October 23, Assumpsit by the Stoddard Manufacturing Company against Adam Miller and another for machinery sold. From a judgment for plaintiff, defendants bring error. Reversed. E. C. & H. A. Babcock, for appellants. MCGRATH, C. J. Defendants are dealers in farming implements at Minden City. They had had dealings with the Farmers' Friend Manufacturing Company, and in December, 1892, entered into a written contract with said company for six harrows, nine 9-hoe Farmers' Friend drills, and one 10-hoe Farmers' Friend drill. The agreement contemplated further orders, and prescribed the terms. It granted to defendants the exclusive right to sell in certain territory, and provided that defendants should make every effort to extend the trade in the territory, sell no competing machines, and order as many more machines as the territory might require. It provided that the company would replace defective parts, and furnish repairs at list prices, less 25 per cent. It contained a further provision that "The machines furnished under this contract are warranted to be well made, of good material, and, if properly handled, to do good work. They are to be set up and operated according to directions. If any one fails, owing to defects or otherwise, notice must be given to the Farmers' Friend Manufacturing Company, Dayton, Ohio, and time allowed to put it in order or operate it. The use of a machine longer than one day, without notice of defect, shall be evidence that it is accepted, and this warranty shall cease. "(Signed) FARMERS' FRIEND MNFG. CO., "By GEORGE A. WOODFORD." On August 23, 1893, defendants wrote to Woodford a letter as follows: "Please ship me at wonts to Minden City, wone rite stele weel for a drill Two square feeting schafts. 4 ten hoe drills also some note blanks for drills. Send it at wonts without daylay." Upon receipt of this order the company sent four 10-hoe drills to defendants. Some correspondence was evidently had respecting this shipment, defendants claiming that they had intended to order two shafts for 10-hoe drills, and not to order four 10-hoe drills; but defendants retained the drills. Under the contract these drills were to be paid for in 90 days. Plaintiff sues as assignee of the account. Defendants set up a breach of the warranty. In December, 1893, one Quig called upon the defendants for a settlement of the account. Defendants had on hand at that time five of the 9-hoe and four 10-hoe drills. Quig says that there was a partial settlement at that time, but that defendants refused to pay for the goods on hand, but wanted him to carry the articles on hand over into the next year's contract, which he refused to do; that at that time no mention was made to him that the goods were defective, but that the mistake in the letter of August 23d was referred to by defendants. The statement presented at that time describes the goods unsold as "on hand (not settled)." It seems to be conceded that the drills were not the same as those which had been previously sold to defendants; that a steel frame had been substituted for a wooden frame. Defendants explained this by saying that "they changed the drill into a steel frame, and put the sprocket in the middle, and put the chain on the feed shaft, and it springs the shaft in the center, and stops their working." Defendants' testimony tended to show that they had sold several of these drills, which proved defective, and the parties to whom sold refused to pay for them; that they had tried to remedy this defect, but without success; that when Quig came there they explained the difficulty to him, told him that the drills would not work, that purchasers had refused to pay for them, and that they were useless; that they refused to pay for them, and requested Quig to take them back; that they told Quig that they would in no case agree to pay for them until sold, and that Quig agreed to carry them until they were sold. The court instructed the jury that— "If there was an agreement to postpone the payment for these nine implements to the season of 1894, there can be a recovery for the plaintiff for $120 only, and interest from December 19, 1893, to this time. If the extension was made, it would also be a waiver on the part of the defendants as to defects as to workmanlike quality of the |