Ace Eng'g Co. v. W. Bend Malting Co.
| Decision Date | 09 November 1943 |
| Citation | 244 Wis. 91,11 N.W.2d 627 |
| Parties | ACE ENGINEERING CO. v. WEST BEND MALTING CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Washington County; Edward J. Gehl, Judge.
Affirmed.
This was an action commenced on February 18, 1938, by Ace Engineering Company, plaintiff, against West Bend Malting Company, defendant, to recover a balance due upon the sale of oil burners. Defendant counterclaimed for breach of warranty. The trial was to the court which made and filed findings of fact and conclusions of law and ordered judgment for defendant upon its counterclaim in the sum of $1,127.62. Judgment was entered on February 24, 1943. Plaintiff appeals. The material facts will be stated in the opinion.
Sol J. Weil, of Milwaukee, for appellant.
Sullivan & Lauritzen, of Milwaukee, for respondent.
In July, 1937, plaintiff sold defendant two oil burners to replace coal furnaces theretofore used by defendant to heat and dry its malt products. It is conceded that under the contract plaintiff was obligated to construct and install fire boxes and burners in such a manner and that there would be no smoke, fumes or soot. It is also conceded that it was understood by all of the parties that if the burners smoked they would injure the grain and impair or destroy its value for human consumption. The burners were installed on or about September 1, 1937, and were fired on September 15th.
According to the evidence, the burners smoked on the 15th of September, and on the 19th of September, causing damage by smoke to the grain then being processed. This damage reduced the value of the grain from about 3 1/2¢ a pound to 1¢ a pound and made up all of the damages allowed to defendant by the court upon its counterclaim. There is some confusion in the evidence as to whether the burners smoked on one or two occasions and considerable support for the conclusion of the trial court that there was only one instance of smoking, and that on the 19th of September,but we do not consider this to be of great importance.
Upon the evidence there was an issue of fact whether the smoking was caused by the use of a nozzle of improper size (in which event, there would be a further question whether the fault was that of plaintiff in failing to put on the right size of nozzle, or that of defendant in having to install a different nozzle in view of the dimensions and design of the fire box), or by the installation of combustion chambers of incorrect size and design resulting (1) in air supply insufficient to cause complete combustion; (2) improper location of this supply resulting in irregular and incomplete combustion.
The trial court found that the smoke and consequent damage was caused by incomplete combustion resulting from the design and construction of...
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