Walter N. Kelley Co. v. Auto Body Co.

After a more careful reading of this somewhat voluminous record and after hearing the argument of counsel on rehearing, I am unable to agree with the conclusion reached by Mr. Justice Bird, as reported in 219 Mich. 486, that defendant had so acquiesced in plaintiff’s rescission of the several unfilled contracts for the delivery of lumber as to legally terminate them. Neither upon the trial nor in the briefs filed on the original hearing did ■ plaintiff’s counsel make any such claim. What they did claim was thus stated:

*614“The court erred in withdrawing from the consideration of the jury the…