Cosgrove v. Bennett

• Decision Date: 29 July 1884
• Parties: William N. Cosgrove v. Elihu M. Bennett
• Court: Minnesota Supreme Court

20 N.W. 359

32 Minn. 371

William N. Cosgrove v. Elihu M. Bennett

Supreme Court of Minnesota

July 29, 1884

Appeal by defendant from an order of the district court for Rice county, Buckham, J., presiding, refusing a new trial after a trial by the court without a jury.

Order reversed.

Kellogg & Eaton and Chas. C. Willson, for appellant.

Geo. N Baxter, for respondent.

OPINION

Vanderburgh, J.

This action was brought to recover the unpaid balance of the purchase price of a certain "roller mill," for the manufacture of flour, furnished to defendant upon his order as follows:

"Faribault Minn., June 10, 1882.

"I the undersigned, do hereby order from W. N. Cosgrove one of the Cosgrove Cascade Roller Mills, to be constructed for my mill in Bismarck, D. T. Machine to have capacity of one hundred barrels per twenty-four hours; to have five pairs of corrugated rolls. Machine to be constructed in first-class shape, and to be ready to ship in ninety days from the date of order, or sooner if possible. Price to be twenty-two hundred dollars; five hundred dollars to be paid in ten days from date of order, and six hundred dollars to be paid when machine ready to ship; the remaining eleven hundred dollars to be paid when machine ready to start."

A counterpart of this order, embracing the same terms and conditions, was at the same time executed by plaintiff. It was found by the court, substantially, that at the date of the contract plaintiff had never manufactured any of these mills, nor was there any in use, but he had constructed a model of the separating device connected therewith, which constituted the chief improvement patented by him, by means of which he undertook to illustrate its practical operation. After a personal examination of the model and witnessing its operation, and after hearing plaintiff's description and explanation of the machine and its design, defendant determined to order one for his own use, and accordingly entered into the above contract therefor; and thereupon the plaintiff manufactured and delivered to him the machine in controversy, in all respects in conformity with the model, design, and specifications exhibited to the defendant. The same was also well made and of good materials, and the defendant thereupon caused it to be properly set up and put in operation. The defence is that the mill was faulty in design, and was unfit for the practical use for which it was intended; that it failed to properly separate the "middlings," and the sieves clogged and failed to properly pass and deliver over them the crushed grain; and that the capacity thereof did not exceed 35 barrels in 24 hours.

1. The defendant insists that a warranty is, under the circumstances, to be implied, that the mill ordered should be reasonably fit for the business for which it was intended. To this we do not agree. It is true, as found by the court, that he was influenced by the opinions and recommendations of the plaintiff, as well as by his own personal examination of the model and its operation, but, nevertheless, the contract called for a mill of this particular pattern and design, and so far the contract was satisfied by the article delivered. If he desired a further protection or guaranty in respect to the character or success of its practical operation, he should have seen to it that the proper stipulations were inserted in the contract. The general rule is stated to be that, when an article is ordered to be manufactured for a particular use or purpose, there is an implied warranty that it is to be reasonably fit for such use or purpose. But where, as in this case, the article ordered was to be of...