Blackmore v. Fairbanks, Morse & Co.

• Decision Date: 03 February 1890
• Court: Iowa Supreme Court
• Parties: BLACKMORE v. FAIRBANKS, MORSE & CO.

79 Iowa 282

44 N.W. 548

BLACKMORE

v.FAIRBANKS, MORSE & CO.

Supreme Court of Iowa.

Feb. 3, 1890.

Appeal from district court, Butler county; JOHN C. SHERWIN, Judge.

Action to recover damages alleged to have been sustained by reason of breach of warranty in the sale of machinery. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.Cummins & Wright, for appellant.

J. H. Scales, for appellee.

ROBINSON, J.

The agreement under which the machinery in controversy was sold was in writing, and in the form of an order. The portions material to a determination of the questions raised on this appeal are as follows: “Messrs. Fairbanks, Morse & Co., Chicago: Please furnish me at once the following-named goods: * * * One 25 H. P. Standard Westinghouse engine; one 30 H. P. boiler, with fixtures complete, and machines as follows: One steam-pump, with sufficient capacity to supply boiler and heater with water taken from the well; * * * one Stillwell heater and connections complete. * * * This order is for the engine and boiler at Lesterville, D. T., with fixtures complete, exceptinspirator and heater; the latter to be replaced with the Stillwell heater. Said outfit to be in good order, except from exposure to weather at Lesterville, which has not damaged the real merits of the machinery.” The machinery specified in the agreement was delivered to plaintiff. The petition alleges that the machinery was “warranted to be sufficient to furnish the motive power for the Aplington Grist & Flouring Mills, and be sound, and do good work, as specified in said warranty. * * * That on a specified test thereof, said engine, machinery, and appliances sold by defendant to plaintiff proved defective and insufficient, in this: that it throws crank case oil into the heater and boiler, so as to render it dangerous, insufcient, and entails great expense in its operation, and is insufficient to furnish the motive power for plaintiff's said mill.” The answer denies the alleged warranty, denies the alleged defects in the machinery, and avers that the cause of the throwing of crank case oil into the heater and boiler was the use by plaintiff of an open heater, without an oil extractor. The answer further avers, by way of counter-claim, that plaintiff and one Wandby, by means of a fraudulent conspiracy, caused defendant to ship for said Wandby, at Parkersburg, Iowa, a beam stock-scale and beambox for the agreed price of $165; that said scale and beam-box were marked to defendants at Parkersburg, and upon their arrival there they were taken under a writ of attachment issued in this action; that the order for said attached property was given by Wandby, at the request and for the benefit of plaintiff, in order to get property of defendant, a foreign corporation, within the jurisdiction of this court, and thus cause defendant to appear in this action; that the price of the scale and box is unpaid. Judgment is demanded therefor. The answer further avers that defendant was not the maunufacturer of the machinery in question, and that in the sale thereof it acted only as agents for the manufacturer, the Westinghouse Machine-Works. The counter-claim is denied.

1. Plaintiff testified to receiving the machinery, and that he proceeded to erect the engine. After describing what was necessary to be done, he stated that he had instructions in regard to it; that defendant sent him a plan. He was then asked this question: “Was it erected according to the plan?” and he answered, “Yes.” Defendant then objected to the question upon the ground that plaintiff should show the plan, and show how the machinery was erected; and the objection was overruled. The objection should have been made, if at all, before the answer was given. The interrogatory related to an issue tendered by the answer, and was asked of plaintiff during his examination in chief, to support the averments of his petition. Defendant had an opportunity to cross-examine the witness, and test the accuracy of his answer. We do not find any attempt shown by the record to prove that plaintiff deviated from the plan furnished in setting up the machinery. In view of these facts no prejudice could have resulted to defendant from the ruling in question, even if it be conceded that the objection was made in time.

2. Plaintiff testified that the engine did not develop more than 17-horse power. He was then asked this question: “Was that sufficient for the propelling of the mill machinery?” The question was objected to, but no ground of objection was stated. The substance of the answer was that the power developed was not sufficient. The court was not obliged to sustain an objection for which no ground was suggested, even though a sufficient one in fact existed. It is the right of the court to know upon what ground the objector relies. It is now suggested that the question was improper because it was asked on the theory that defendant agreed to furnish an engine and boiler sufficient to run plaintiff's mill, but the court charged the jury that it only agreed to furnish an engine of 25-horse power. The evidence tended to show that an engine of 25-horse power would run the machinery of the mill. Therefore the answer tended to show that the engine furnished was not of that power. The ruling in question was not erroneous.

3. Plaintiff was asked: “If the engine and boiler, and appliances, furnished under the order, had been in good order, and of real merit, would it have been worth the price you paid?” This was objected to on the ground that “the contract price is the established price between them, which they cannot deny.” The objection was overruled, and plaintiff answered: “Yes, sir. It would have been worth more.” Appellant complains of the question on the ground that defendant did not agree that the machinery should be “in good order, and of real merit,” as assumed by the question. But the objection did not raise the question now discussed. The question was not a proper one, but no prejudice could have resulted from the defect pointed out by the...