B. F. Sturtevant Co. v. Lemars Gas Co.
| Decision Date | 23 February 1920 |
| Docket Number | 33129 |
| Citation | 176 N.W. 338,188 Iowa 584 |
| Parties | B. F. STURTEVANT COMPANY, Appellee, v. LEMARS GAS COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Plymouth District Court.--C. C. BRADLEY, Judge.
ACTION on account for merchandise sold and delivered by plaintiff to defendant. Defendant pleaded rescission of the contract as to a part of the machinery, and claimed damages on account of defects in a part thereof. There was a directed verdict for plaintiff, and defendant appeals.
Reversed.
Nelson Miller, for appellant.
McDuffie & Keenan and J. U. Sammis, for appellee.
I.
Plaintiff, a corporation, manufactures and sells certain kinds of machinery, used in artificial gas plants. The defendant corporation owns and operates a gas plant at LeMars, Iowa. Plaintiff alleged in his petition that, on or about September 28, 1915, it sold and delivered to the defendant, at LeMars, Iowa, "One No. 1 steel pressure blower, with steel plate sub-base and motor, 110 volts, 60 cycles, right-hand up-blast discharge, at the agreed price of $ 91; also, one No. 4 special extra heavy gas blower and motor, 110 volts, 60 blower and motor, to be repaired by plaintiff, and cycles, at the agreed price of $ 380, and amounting in the aggregate to the sum of $ 471;" and that payment has been refused by defendant.
For answer, defendant admitted the purchase and delivery of the machinery described, but avers that the No. 4 gas blower and motor were purchased for use in its gas plant; that, before ordering same, defendant fully advised plaintiff of the kind of machinery required, the conditions under which it would be operated, and the purpose for which it was to be used; that plaintiff manufactured the blowers and motors and represented that they had expert knowledge of the same, that the machinery delivered would do the work for which it was desired, and that it was suitable and well adapted thereto; but that, "when said machinery was delivered, and the operation of the same began, without any fault or neglect of the defendants the said machinery utterly failed to do said work; that it could not sustain an even pressure for sufficient length of time, would vibrate and shake and get out of repair, so as to make the operation of the same impractical; that it was not reasonably fit or adapted to do said work, or to do the work for which it was built; that said motor and blower in operation would shake and vibrate so that it tore itself to pieces; that the coupling or connecting parts between the motor part and the blower part of said machine would go to pieces, and could not be kept intact for more than a short period at a time, necessitating shutdowns for repairs; that it did not run smoothly and evenly, but sometimes would run at a high speed, and then die down to almost no speed at all, and barely keep itself in operation; that, through such defective and intermittent operation, it could not and did not sustain or maintain a pressure on defendants' generator for which it was purchased; that said machinery could not be used by the defendants, because of said defects in operation, and they were compelled to procure other machinery to do the work for which it was ordered."
Defendant further alleged that, after requesting and demanding that plaintiffs put the No. 4 blower and motor referred to in petition in a condition to do the work required, and their refusal to do so, it rescinded the contract, and returned same to plaintiffs.
In a separate count of plaintiff's answer, and by way of counterclaim, it alleged that, on about April 6, 1914, it purchased a No. 4 turbine engine and gas blower of plaintiff, at an agreed price of $ 385; that, before receiving same, defendants informed plaintiff fully of the purpose for which same was wanted, the work required, and the conditions under which it would be operated; that they were a public service corporation, engaged in selling gas for heating, lighting, and power purposes; that they consulted with plaintiffs, and were advised thereby that said machinery was suitable to do the work required; that it would run smoothly and evenly, and was well adapted to the work for which it was built and intended: but defendant avers that it did not run smoothly and evenly; that it failed to do the work for which it was purchased; that it would shake, vibrate, and pound so fiercely that it continually tore itself to pieces, getting out of repair, and requiring frequent shutdowns on account thereof; that the same wholly failed to do the work for which it was purchased, without fault or neglect on the part of the defendants; that it was not reasonably fit or adapted to the work for which it was intended; that defendant frequently requested plaintiff to place same in repair, which it failed to do; that the defects in said machinery were concealed, and not known to defendant until about four months after it was installed, when it was manifested by the manner of its operation. It therefore asks judgment for damages.
As alleged in defendant's answer, the No. 4 blower and motor therein described were received by defendant on December 31, 1915, and returned in March, 1916. The No. 1 blower and motor proved satisfactory, and were retained by defendant.
For reply to the allegations of defendant's answer, plaintiff admitted the sale and delivery of the turbine engine and blower, and that it was paid $ 385 therefor. They allege that same was improperly and unskillfully installed and operated by defendant; that defendant has retained said machinery without complaint, and has thereby waived its claim for damages, and is estopped to plead or prove any of the allegations of its counterclaim; that the No. 4 gas blower and motor last purchased were improperly and unskillfully installed, upon an insufficient foundation; that defendant negligently and wrongfully altered parts of the machinery, and unskillfully handled and operated said machine; and that, if it failed to work, it was due to the negligence, unskillfulness, and incompetency of defendant, and to no defect in the machinery. At the conclusion of plaintiff's evidence, a motion was offered by plaintiff for a directed verdict, which was sustained.
The principal points made by plaintiff in its motion, and in argument in this court, are as follows: (a) That all of said machinery was sold and delivered without warranty, express or implied; (b) that the evidence offered wholly failed to sustain the allegations of defendant's answer; (c) that the No. 4 motor and blower were not defective, and were reasonably suitable and fit, when properly operated, for the purpose intended; (d) that the contract for the purchase of the No. 1 steel pressure blower and motor and the No. 4 blower and motor was entire and indivisible; that only a portion of the machinery has been returned; and that defendant has not been placed in statu quo, and no rescission of the contract is, therefore, shown; (e) that defendant retained the machinery referred to in defendant's counterclaim, without offer to make return thereof, and without complaint, since it was delivered, and is estopped to claim damages on account thereof; and that the evidence wholly fails to sustain the counterclaim.
The contract for the purchase of all the machinery in question is made up of various letters written by the respective parties hereto, and covering a long period of time. On account of the number and extent thereof, and deeming it unnecessary to a proper decision of the only question presented for review, we refrain from setting out this correspondence. It appears however, from a careful reading thereof, that the order for each separate unit was forwarded, and finally accepted by plaintiff, after being fully advised of the use defendant desired to make thereof, the conditions under which it would be operated, and after the submission by plaintiff of drawings and plans, illustrating the...
To continue reading
Request your trial