Int'l Pavement Co. v. Smith

Decision Date07 April 1885
Citation17 Mo.App. 264
PartiesINTERNATIONAL PAVEMENT COMPANY, Plaintiff in Error, v. SMITH, BEGGS & RANKEN MACHINE COMPANY, Defendant in Error.
CourtMissouri Court of Appeals

ERROR to the St. Louis Circuit Court, ADAMS, J.

Affirmed.

HIRAM J. GROVER, for the plaintiff in error: Where the contract of sale is executory, and an immediate delivery, or inspection is not contemplated by the parties, there is an implied warranty on the part of the vendor that when delivered the article will be fit and suitable for the purpose for which it is sold.--Parsons' Contracts, 7th ed. vol. 1, sect. 584, notes; Rodgers v. Niles, 11 Ohio 56; Chandler v. Lopus, Smith's Leading Cases, vol. 1, pp. 340 and 314. If he sells it for a particular purpose he undertakes that it shall be fit for that particular purpose.-- Jones v. Bright, 5 Bing. 523; Beals v. Olmstead, 24 Vt. 114; Kellogg Bridge Co. v. Hamilton, 110 U. S. S. C. 108; Wharton, Contracts, vol. 2, sects. 905, 906; Parsons' Contracts, vol. 1, sect. 586.

BROADHEAD & HAEUSSLER, for the defendant in error: An express warranty of quality in any particular excludes the idea of an implied warranty.-- Baldwin v. VanDiesen, 37 N. Y. 487; Wharton on Contracts, sect. 220; Benjamin on Sales (1883) sect. 1002; Denny v. Foster, 42 N. H. 175; Jackson v. Langston, 61 Ga. 394; Parkinson v. Lee, 2 East. 314; McGrew v. Fletcher, 35 Mich. 104; Mullain v. Thomas, 43 Conn. 252.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff sues for breach of warranty in a contract for the purchase of two steam boilers from the defendant. The contract sued upon is embodied in the following correspondence:

“THE INTERNATIONAL PAVEMENT CO.,
)
Office 71 Broadway, Room 100.
)

NEW YORK, August 26, 1881.

)

Messrs. Smith, Beggs & Ranken, St. Louis,--

DEAR SIRS: Our Mr. Hungerford reports to me that, in reply to his letter of inquiry respecting engine and boilers, that you have such, but are second-hand. How long have such been in use? Are they approximately as good as new? What is your price, f. o. b. for New Orleans? What is the weight? Can you give us rates of freight to New Orleans? How soon could you ship? An early reply would oblige

Yours truly,

J. P. ROBINSON.”

“SMITH, BEGGS & RANKEN MACHINE CO.,
)
Manufacturers of
)
Engines, Elevators and General Machinery.

)

ST. LOUIS, MO., August 31, 1881.

J. P. Robinson, Pres. International Pavement Co.,

No. 71, Broadway, New York,--

DEAR SIR: Yours of the 26th inst., to hand, and in reply will state that the 16x30 was running a six-run flour mill, and we replaced it with one of our large engines, and took it in part pay. It was a slide valve engine, and we intend to take off these valves and put on our piston valves, and will put in first-class order, and will guarantee it to work well or no pay. The boilers we will test to 200 lbs., hydrostatic pressure, to 200 pounds to the square inch, and furnish you the tester's certificate before shipment. The breechen, smoke stack, fire front and all the boiler castings, the boiler feeder, steam and supply pipes, 16 exhaust and 35 suction pipes, mud check and safety valves, and glass water and steam gage, will be new and all complete and warranted, and delivered to steamboat here for $2750 (twenty-seven hundred and fifty dollars); weight 34,500 pounds.

Yours truly,

SMITH, BEGGS & RANKEN MACHINE CO.

JOHNSTON BEGGS, Pres.”

“NEW YORK, September 13, 1881.

Messrs. Smith, Beggs & Ranken, St. Louis,--

GENTLEMEN: Your favor of 31st inst., came to hand during my absence from the city. I should think your proposition a fair one, and upon the hypothesis that the previous use of same has not injured them, or that you, as stated in yours, will put them in first-class condition, ready for use, I accept the proposition. You will at once proceed in the completion of the same, and I will at a later date advise you as to the time for shipment to comport with the shipment from here of other parts of our machinery to New Orleans. Probably I shall send from here our machinist to New Orleans, via St. Louis, for consultation with you.

J. P. ROBINSON, President.”

“NEW YORK, September 13, 1881.

Smith, Beggs & Ranken, St. Louis,--

We will take the engine and boilers as proposed by letter of to-day.

J. P. ROBINSON, President.”

“SMITH, BEGGS & RANKEN MACHINE CO.,
)
Manf'rs of Engines, Elevators, and Gen'l Mach'ry.,
)
Office and Warerooms, Nos. 800 and 802 N. Main St.

)

ST. LOUIS, September 17, 1881.

J. P. Robinson, Esq., Pres. International Pavement Company,

71 Broadway, New York City,--

DEAR SIR:--Your telegram and letter of the 13th to hand, and we are now at work overhauling the engine and putting on our piston valves, which will make it work as well, if not better, than it ever did. A great deal of the machinery will be new, and we will have to pay out the cash for it. And, as we have been putting in new machinery and adding on additional buildings to our foundry, we respectfully ask you to send us say ($1,500) fifteen hundred dollars, on account.

Hoping this will not incommoday [sic?] you, and that you will appreciate our condition, we remain yours truly,

SMITH, BEGGS & RANKEN MACHINE CO.,

JOHNSTON BEGGS, Pres.”

It appears from the testimony that the plaintiff purchased the boilers and engine for the use of the New Orleans Paving and Draining Company. They were landed at New Orleans on November 26th, 1881, and work was at once commenced in putting them up for service. The New Orleans Company, however, objected that the boilers were unsafe and worthless, and notified the plaintiff that it would not accept them. The testimony tended further to show, that a hammer test was applied, which proved the boilers to be so worn and weak that they would not have withstood a pressure of 60 pounds to the square inch. The defendant's testimony tended to show that, before the shipment, the boilers were tested by a competent person; that they stood the test at a hydrostatic pressure of 200 pounds to the square inch, and that the tester's certificate to that effect was mailed by the defendant to the plaintiff, at the time of the shipment. The court instructed the jury as follows:

“The court instructs the jury that the burthen is upon plaintiff of proving that there was a breach of warranty on the part of defendant, and unless you believe from the evidence that the boilers when shipped did not and would not stand a hydrostatic pressure of 200 pounds to the square inch, and that defendants did not furnish plaintiffs with the tester's certificate, then plaintiff can not recover in this action, and they should find for defendant.”

“The court instructs that, under the terms of the contract between the plaintiffs and defendants, sued on in this case, the defendants agreed to sell and ship to plaintiffs two second-hand boilers, which defendant was to test or have tested by 200 pounds hydrostatic pressure to the square inch, and furnish to plaintiffs the tester's certificate, and if they believe from all the evidence before them, that the boilers shipped to plaintiffs did at the time and place of delivery, which was aboard a vessel at St. Louis, stand a test of 200 pounds to the square inch, and that a certificate was sent to plaintiff by defendant, signed by the party testing them, then plaintiffs can not recover in this action, and they...

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