the machine, trying to correct the difficulties and trying to put on attachments that would make it work.' There is no claim on the part of the defendant that after the writing of the letter of July 25th by defendant, the plaintiff attempted to do anything more by way of experimenting with the machine. The court, as we have already said, directed a verdict for the plaintiff for the full amount of the contract price, and it would seem that by its charge it relied upon the case of Foster v. Rowley, 110 Mich. 63 (67 N. W. 1077). The defendant has brought the case here upon writ of error, and the errors. assigned are that the court erred in directing a verdict in favor of the plaintiff and in refusing to submit said cause to the jury. Defendant's position here upon the argument was substantially as above indicated in the court below, relying upon Phelps v. Whitaker, 37 Mich. 72. Passing the claim of appellee, that as no exception was taken to the ruling of the court in response to plaintiff's motion to direct a verdict in its behalf, no question is here for review, but treating error as having been properly assigned upon the charge of the court, under our statute (section 10247, 3 Comp. Laws; 5 How. Stat. [2d Ed.] § 12960), we think that upon the merits of the case the court did not err in directing a verdict and judgment for the plaintiff, and that the case of Foster v. Rowley, supra, and the subsequent cases of Hakes v. Thayer, 165 Mich. 476 (131 N. W. 174), and Wittemann Co. v. Malting & Brewing Co., 183 Mich. 227 (150 N. W. 109), rule the instant case. The Wittemann Co. Case, like this, was planted in the pleadings, and was tried upon the theory that the contract in question was obtained by fraud, and it was under that theory that the case was submitted. Justice KUHN, speaking for the court, said: "It is urged that what the defendant is attempting to do, in effect, is to add to the contract entered into by the parties warranties not contained therein, and it is insisted that the rule that there cannot be read into a written contract an express oral warranty should not be evaded by calling facts which constitute an express oral warranty by another name, 'fraud.' In support of appellant's claim the case of Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 [108 N. W. 286], is relied upon. We are unable to distinguish the instant case from that case, in principle, as it is clear that the representations here relied upon to show fraud * ** are warranties. As was said in the Comstock Case with reference to such representations: 'At most, this amounted to evidence of a parol warranty. Under this authority we see no escape from the conclusion that the trial court should have ruled out all the evidence with relation to such representations." * The case of Williams Transportation Line v. Transportation Co., 129 Mich. 209 (88 N. W. 473, 56 L. R. A. 939), is an instructive case upon the subject of the right to rescind an executed contract for a breach of warranty. In the instant case the claimed representation would amount to a verbal warranty, and not a false representation. As a verbal warranty it was inadmissible. As this court said in Hakes v. Thayer, supra, this defendant could not "play fast and loose" in this matter. Having kept the machine and continued to use it down to the time of trial, it was estopped from claiming rescission of the contract as a defense. It was competent for the plaintiff to show the conduct of the defendant with reference to the use of the machine, even down to the day of trial. No plea of puis darrein continuance was required. In fact, none would have been proper. Of course the defendant would interpose no such plea, and we know of no rule of pleading that would require the plaintiff to give notice that it would introduce evidence in rebuttal, or on cross-examination of the defendant's witnesses to show that the defendant's conduct was such as to preclude the defense here sought. In fact it was along the line of plaintiff's claim in its declaration of goods sold and delivered, and to rebut defendant's defense of rescission. We find no reversible error in the record, and the judgment of the court below is affirmed. BROOKE, C. J., and MCALVAY, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred. ROOF v. BLAKE. GARNISHMENT-JOINT PARTIES-SEVERAL DEBT-SUBJECT OF GAR NISHMENT. An indebtedness due to one of two joint defendants in an action of assumpsit was subject to garnishment in favor of the plaintiff in proper proceedings, under section 10600, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13436). Error to Kalamazoo; Stewart, J. Submitted April 16, 1915. (Docket No. 132.) Decided June 14, 1915. Garnishment proceedings by Barney Roof against Horace A. Steuard and others as garnishees of William I. Blake. Marietta Blake was interpleaded as party claimant of the fund, and from a verdict directed in her favor plaintiff brings error. Reversed. Boudeman, Adams & Weston, for appellant. A. S. Frost (W. J. Barnard, of counsel), for appellee. MCALVAY, J. This was an action in assumpsit brought by plaintiff against the principal defendants, who were copartners in business as Blake Bros., in which a judgment was recovered against them and in favor of plaintiff for the sum of $452.16. At the time of the commencement of this suit, plaintiff sued out a writ of garnishment against Horace A Steuard, as garnishee defendant, to secure funds claimed to be in his hands belonging to William I. Blake, one of the principal defendants. Mr. Steuard made a disclosure in writing that at the time of the service of said writ he was indebted to said defendant William I. Blake in the sum of $281.66, and further that this money was claimed by one Marietta Blake, the wife of William I. Blake. Proper proceedings were taken whereby said Marietta Blake was interpleaded as one of the defendants. She caused her appearance to be entered, filed her plea and notice, and the case was brought on for trial. After the opening statement of plaintiff's counsel, upon motion of counsel for defendant, the court directed a verdict for the defendant Marietta Blake. This motion was based upon the opening statement of plaintiff's counsel, coupled with the admission that the judgment in the principal case was against Blake Bros. jointly, and that the moneys sought to be recovered by plaintiff in the garnishment proceedings were the property of William I. Blake, one of the principal defendants. Plaintiff excepted to the action of the court in directing a verdict in favor of defendant and has removed the case to this court by writ of error for review upon errors assigned to such exception. But one question is involved in the case, namely: Can a plaintiff garnish moneys in the hands of a third person belonging to one of two joint defendants to satisfy his claim against both defendants? It is the contention of the appellee, which was ac cepted by the trial court, that the above question must be answered in the negative. The whole question is controlled by the statute. This statute regulating proceedings against garnishees in courts of record was amended by Act No. 128, Pub. Acts 1885, being section 10600, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13436), and reads as follows: "SECTION 1. The people of the State of Michigan enact, that in all personal actions arising upon contracts, express or implied, brought in the several circuit courts or municipal courts of civil jurisdiction, whether commenced by declaration, writs of capias, summons or attachment, and in all other cases where there remains any sum unpaid upon any judgment or decree rendered in any of the several courts hereinbefore mentioned or upon any transcript of a judgment filed in said courts, if the plaintiff, his agent or attorney, shall file with the clerk of said circuit court at the time of, or after the commencement of suit, or at any time after rendition of judgment or decree or the filing of a transcript of judgment, an affidavit stating that he has good reason to believe, *that any person (naming him) [has] his property, money, goods, chattels, credits or effects in his hands or under his custody or control, belonging to the defendant or any or either of the defendants, or that such person is indebted to the defendants, or any or either of the defendants, whether such indebtedness is due or not, a writ of garnishment shall be issued, sealed and tested in the same manner as writs of summons,' etc. * * * * * The case of Meigs v. Weller, 90 Mich. 629 (51 N. W. 681), decided March 18, 1892, which was appealed to this court by the garnishee defendant, is the only case in which this statute as amended has been construed. Two opinions were filed in the case; but, as far as the question here involved is concerned, they were in accord. In the dissenting opinion Mr. Justice GRANT, at page 638 of 90 Mich. (at page 683 of 51 N. W.), said: |