The action being between the original parties to the notes, and the notes never having been negotiated, it was competent for defendant to introduce testimony to prove want of consideration; the burden being upon plaintiff upon the whole case to prove consideration. Manistee Nat. Bank v. Seymour, 64 Mich. 59 (31 N. W. 140); Taylor v. Taylor's Estate, 138 Mich. 658 (101 N. W. 832). The facts supposed to show want of consideration are not disputed. Plaintiff's decedent held the promissory notes of defendant's husband. After the death of her husband, intestate, defendant gave the notes in suit to pay accrued interest upon her husband's said notes. Plaintiff's decedent accepted the notes in suit in payment of such accrued interest and indorsed the amount thereof upon said notes. The estate of defendant's deceased husband has never been administered. Whether defendant's husband had an estate of value and defendant a valuable interest therein, whether forbearance was sought by defendant and was secured, are facts not made to appear. There is no evidence of reciprocal promises, and in the facts stated there is none of any benefit or advantage moving from plaintiff's decedent to defendant. There is the presumption, already referred to, and the fact that the notes in suit were tendered and received in payment of the debt of a third person, which debt was, to the amount of the notes in suit, discharged. We regard the fact that the third party debtor was deceased when defendant's notes were given as immaterial. There was an act of plaintiff's decedent, the altering of an existing right, presumptively the release or relinquishment of a remedy based upon defendant's promises. This is a sufficient consideration for the promises. The judgment is affirmed. MOORE, C. J., and STEERE, MCALVAY, BROOKE, KUHN, STONE, and BIRD, JJ., concurred. WOOD v. ROOKS. 1. APPEAL AND ERROR-FINDINGS OF FACT AND LAW-TRIAL. Findings of fact made by the trial judge without the aid of a jury are regarded on error as special verdicts which, if supported by any evidence, are conclusive; but appellant may review the case on the contention that there is no testimony to sustain them. 2. SALES-CONTRACTS-RESCISSION-WAIVER. Where defendant executed an order in duplicate for a set of books, and caused to be inserted on the part retained by him a condition that the books should be delivered in nine months, also, after the expiration of that time, ordering other books from plaintiff and signing an agreement to pay installments upon both orders, he could not rescind for failure upon plaintiff's part to deliver the set within the nine months. 8. SAME-BREACH-WAIVER. He waived any failure of performance, so as to lose his right to rescind, by accepting and retaining a part of the first order after the time limited by the duplicate contract. Error to Kent; Brown, J. Submitted October 16, 1912. (Docket No. 98.) Decided December 17, 1912. Assumpsit in justice's court by William C. Wood and another against John J. Rooks for the price of books sold to defendant. From a judgment for plaintiffs for less than their claim, the plaintiffs appealed to circuit court. Judgment for plaintiffs. Defendant brings error. Affirmed. Adsit & Danhof, for appellant. OSTRANDER, J. In justice's court plaintiffs declared orally upon the "common counts in assumpsit specially for goods sold and delivered and specially on two con tracts for purchase of two sets of books," and defendant pleaded the general issue with notice that he would show in his defense the following facts: "Said plaintiffs' authorized agent on or about February 6, 1907, called on said defendant at his office in the city of Grand Rapids, in said county, and solicited him to subscribe for a set of medical books entitled 'The American Practice of Surgery.' That said agent stated to him that said books would all be published and delivered within nine (9) months thereafter. That defendant told said agent that said books would be out of date and antiquated in authority upon the practice of surgery unless said books were published and delivered within said nine (9) months or thereabouts. That said agent told him that if he did subscribe for said set of books that they (the books) would be published and delivered to him within nine (9) months thereafter. That said defendant then told him that, if he would write in the said order which he presented to him the words 'with the understanding that they would be ready in nine months,' then he would give said plaintiff an order or subscribe for the same. That said agent asked him then to sign the order and at the same time gave to him a duplicate of said order which he was about to sign, and which said duplicate contained the words 'with the understanding that they would be ready in nine months.' That said defendant, relying on the statements and representations of said agent, and also upon the duplicate which the said agent delivered then and there, he (the defendant) signed the same. Said defendant will further show that said statements of said agent were false and untrue. And also this defendant is informed now the order which he did sign and which was sent in by said agent to the plaintiffs did not contain the words with the understanding that they will be ready in nine months.' Defendant will further show: That four of the eight volumes in said set he has received. That some time last spring he was notified of the arrival of the fifth volume of said set, but he refused to receive and accept same or the remaining volumes of said set for the reason that said books did not comply with the terms of said order, namely, that the said entire set was not published and delivered to him within said nine months as said order was given. And for the further reason that said set of books are now antiquated and obsolete upon questions of the practice of surgery. That he has paid on said books the sum of $32, and he hereby claims the right to have said money returned to him by reason of the nonperformance of said contract by said plaintiffs or by applying the same, or as much thereof as may be necessary, on plaintiffs' demand, if any, and that the balance, if any, be certified in defendant's favor. Said defendant will further show: That on or about July 16, 1908, he gave an order to said plaintiffs' agent for another set of books entitled 'Reference Hand Book of the Medical Sciences.' That by the terms of said order he was to pay for the same at the rate of $2.50 every two months until the purchase price of same was paid in full. That he has received said set of books and has made his payments on same as they fell due, and that at the time of the commencement of the said suit no installments on said books were due." The printed record gives no further information about the pleadings. Upon an appeal to the circuit court the issue was tried by the court without a jury and the court found the facts and stated conclusions of law as follows: "FACTS. "(1) Plaintiffs are publishers of medical works in New York City, and on July 5, 1907, one of their solicitors received from defendant, residing in Grand Rapids, a subscription for an eight-volume set of 'American Practice of Surgery,' at $8 per volume, to be thereafter published and delivered as each volume was published, payable '$5 every 60 days from date of shipment.' The subscription was on one of plaintiffs' regular subscription blanks, and the terms of the subscription made a full and complete contract between the parties. "(2) Under this subscription, the first four volumes were shipped to defendant as published, and received by him; the fourth volume being received some time in 1908. Defendant paid for these four volumes; the last $17 being paid in three payments between November 25, 1907, and June 8, 1908, and the four volumes were in possession of defendant when suit was commenced. "(3) On July 16, 1908, through another solicitor of theirs plaintiffs received from defendant a subscription for an eight-volume set of 'Reference Hand Book of Medical Sciences' at $8 per volume, to be shipped at once. This set was in possession of defendant when this suit was commenced. This subscription was likewise on plaintiffs' regular subscription blank and its terms made a full and complete contract between the parties. "(4) The terms of payment were stated on the back of the subscription, and were as follows: "You are to charge this to account and I am to pay full bill as at present ($5.00) every two months, which includes "A. P. S." and "R. H. B." "J. J. ROOKS." "The initials "A. P. S." and "R. H. B." meant respectively, 'American Practice of Surgery' and 'Reference Hand Book of Medical Sciences,' contracted for in the two subscriptions. "(5) January 18, 1909, plaintiffs notified defendant that volume 5 of American Practice of Surgery' had been published and was about to be sent or had already been sent to him. January 20, 1909, defendant replied that he would neither accept the volume nor pay for any more of them. I find that plaintiffs had shipped this volume to defendant before he rescinded the contract for the 'American Practice of Surgery.' "(6) The only payments made by defendant to plaintiffs after June 5, 1908, were two of $5 each, made October 8, 1908, and December 8, 1909, under the terms of the contract of July 16, 1908. After rescinding the contract for the 'American Practice of Surgery,' defendant refused to make any further payments. "(7) When this action was commenced in justice's court of Grand Rapids on October 5, 1909, $25 was due and unpaid under the terms of the contract of July 16, 1908. "LAW. "(1) I find the declaration in the case is broad enough to permit recovery, under the facts shown in this case. "(2) I find that the contract of July 16, 1908, fixed the terms of payment for both sets of books in single, deferred, partial payments, and to that extent merged the contract of February 5, 1907, and made the contract of July 16, 1908, the only contract in existence as to the payments for both sets of books. "(3) I find that the terms of payment stated in the 178 MICH.-18. |