A verdict was rendered for plaintiff, and judgment entered thereon. Later a motion was made for a new trial. The judge overruled that motion, giving his reasons in writing for doing so. The case is brought here by writ of error.

Counsel for appellant say the questions involved

are:

(1) Was the verdict of the jury supported by the weight of testimony?

(2) Should the motion of a new trial have been granted on the ground of newly discovered evidence?

(3) Did the court err in his charge to the jury relative to the special design of the silencers?

(4) Did the court err in submitting the question of an oral agreement as to price and design of silencers to the jury?

(5) Did the court err in refusing to admit evidence as to the terms of settlement between the Lackawanna Manufacturing Company and the defendant and in excluding the Defendant's Exhibit 6?

(6) Did the court err in refusing to consider the silencers offered as physical exhibit in connection with a motion for a new trial?

(7) Did the court err in refusing to strike out the Plaintiff's Exhibits 2, 3, 4, and 5?

(8) Should the defendant have been permitted to show that the Plaintiff's Exhibit J was a routine letter?

We approach these questions in the order in which they are presented in the brief:

1. It is argued that plaintiff's case depends wholly upon the testimony of Mr. Hall, and that the weight of testimony is against him. An examination of the record does not sustain this contention. It shows a sharp conflict in the testimony; witnesses flatly contradicting each other. There are letters and order sheets that standing by themselves tend to support the testimony of Mr. Hall. There is testimony on the part of defendant explaining these letters and the giving of the order sheets, which explanation, if accepted, would

do away with that tendency. There were two payments made by the defendant which tend to support the claim of the plaintiff. Explanations are made of the circumstances under which these payments were made, which explanations, if accepted, would remove that tendency. All this testimony is within the domain of fact, and presented a case for the jury. Gardiner v. Courtright, 165 Mich. 54 (130 N. W. 322), and the many cases cited therein. Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59), and the cases cited therein.

2. Should the motion for a new trial have been granted on the ground of newly discovered evidence? In overruling the motion the trial court said:

"The so-called newly discovered evidence is no more than cumulative upon one of the issues presented by defendant at the trial. Defendant's witness Bert Woodruff testified that he examined all the silencers sent out by defendant, and that none of them had a flange, and now to open the case for the purpose of letting others testify that the silencers Woodruff examined and others did not have flanges and to bring some of such silencers into court would only be adding some testimony to that already in the case."

A reference to the record shows that Mr. Woodruff was employed in the stockroom, and that he examined all of the silencers that came to the stockroom, and that:

"Those silencers were not provided with a flange at the inlet end. * * *

"Q. Then the figure that you have marked here with the pencil is the figure that you identified as being the same as the silencer that you examined?

"A. The same as the silencer I was taking care of in the stock room.

"Q. Were there a large number of these silencers? "A. The nearest I could remember was something near 10 or a dozen that were taken care of especially by me and examined. There may have been more, but not handled by me. All I remember is approximately 10 or 12 that I personally handled."

The amended declaration was filed in April, 1914. In referring to the contract which is the basis of this litigation, it is said:

"For that whereas heretofore, to wit, on the 11th day of March, 1911, at New York, in the State of New York, the plaintiff and defendant entered into a contract whereby the plaintiff agreed to manufacture and sell to plaintiff (defendant) a quantity of specially manufactured engine parts to wit, 275 Hydrex engine exhaust silencers, and the said defendant agreed to accept and pay for the same the sum of $955.35."

The case was tried in December, 1914, so that for eight months before the trial defendant knew it was claimed the silencers were of special manufacture. The motion for a new trial was filed within a month after the judgment was rendered. The so-called newly discovered evidence was to contradict the plaintiff when he testified the silencers were of special design and would be along the same line as the testimony of Mr. Woodruff, and is clearly cumulative. It is not explained why, if the same diligence had been used between the filing of the amended declaration and the trial that was used after the trial, the testimony might not have been produced upon the trial.

In Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444), it was said:

"A motion for a new trial upon the ground of newly discovered evidence is not regarded with favor. The policy of the law is to require of parties care, diligence, and vigilance in securing and presenting evidence.' Elliott, App. Proc. § 857. To entitle one to a new trial upon this ground it should be shown: First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence be not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial. Hayne, New Trial & App. §§ 88-92, and many cases there cited; Gray v. Barton, 62 Mich. 186 [28 N. W. 813]."

We do not think there has been such an abuse of the discretion of the trial judge as to call for our intervention. See Burke v. Traction & Electric Co., 147 Mich. 172 (110 N. W. 524); Leonard v. Leahy, 169 Mich. 406 (135 N. W. 335); National Surety Co. v. Grant, 177 Mich. 348 (143 N. W. 5).

3. Did the court err in his charge to the jury relative to the special design of the silencers? It is the claim of counsel for defendant that the court erred in that part of the charge which we have quoted by omitting any reference to the obligation of the plaintiff to minimize the loss. Counsel say it is not sufficient that goods should be "specially ordered," but it is also essential that the goods should have had no market value. We have been unable to find in the record any request proffered on the part of the defendant asking the judge to charge upon the subject of minimizing the loss.

In discussing the respective rights of the vendor and vendee the following has been stated:

"The vendor of present property in a suit against the vendee, for not taking and paying for the property, has a choice ordinarily of one of three remedies: (1) He may store or retain the property for the vendee and sue him for the entire price; (2) he may sell the property, acting as agent for this purpose of the vendee, and recover the difference between the contract price and the price of resale; or (3) he may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price." Benjamin on Sales (7th Am. Ed.), p. 820.

In 1 Mechem on Sales, § 754, it is said:

"Under a contract for the manufacture of an article, as for the building of a ship or the construction of any other chattel, not existing in specie at the time of making the contract, it is the general rule that no title vests in the purchaser during the progress of the work, nor until the chattel is finished and delivered, or at least is ready for delivery, and, by tender or other

equivalent act is appropriated to the buyer. A few cases hold that the title will not pass until there has been, on the part of the buyer, either an acceptance of the chattel or some "acts or words respecting it from which an acceptance can be inferred." But, by the weight of authority, acceptance by the buyer is not indispensable. If the chattel is produced at the time, and of the kind and quality specified, and in all other respects in compliance with the order, so that the buyer ought to accept it, the title will pass upon a tender or offer of delivery, even though the buyer refuses to accept it."

See, also, Whitcomb v. Whitney, 24 Mich. 486; Haynes v. Quay, 134 Mich. 229 (95 N. W. 1082).

In Black River Lumber Co. v. Warner, 93 Mo. 374 (6 S. W. 210), the following language is used in the opinion:

"Where, however, the subject-matter of the contract is a specific article to be manufactured by the vendor for the vendee, and the vendor has completed his contract, and performed all that the contract requires him to do, it is but just and fair that his damages, in case of a refusal of the vendee to accept the article, should be the contract price. The vendor will, of course, in such case, hold the property for the vendee. And so it has been held in a number of cases. As some of them we cite Shawhan v. Van Nest, 25 Ohio St. 490 [18 Am. Rep. 313]; Ballentine v. Robinson, 46 Pa. 177; Smith v. Wheeler, 7 Or. 49 [33 Am. Rep. 698].

See, also, Goddard v. Binney, 115 Mass. 450 (15 Am. Rep. 112), and other cases found in the brief of counsel.

5. Did the court err in his rulings about the settlement between defendant and the Lackawanna Manufacturing Company? It is true, as contended by counsel, that both companies had the same manager, and some of the same stockholders, though it is a matter of dispute when Mr. Hall severed his relations with the Lackawanna Manufacturing Company, but it is a fact that the corporations were separate entities. To