Cream City Glass Co. v. Friedlander

• Decision Date: 10 January 1893
• Citation: 54 N.W. 28,84 Wis. 53
• Parties: CREAM CITY GLASS CO. v. FRIEDLANDER.
• Court: Wisconsin Supreme Court

84 Wis. 53

54 N.W. 28

CREAM CITY GLASS CO.

v.FRIEDLANDER.

Supreme Court of Wisconsin.

Jan. 10, 1893.

Appeal from circuit court, Milwaukee county; Frank M. Fish, Judge.

Action for money had and received by the Cream City Glass Company against L. M. Friedlander. From a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Action for money had and received. Plaintiff company manufactures glass at Milwaukee. They entered into the following contract with defendant September 4, 1890: “Chicago, September 4th, 1890. Cream City Glass Company: Sold to you about one hundred and fifty (150) tons Muspratt Bros. & Huntley's 48 per cent. carbonated soda ash for shipment by steamers from Liverpool, monthly, in about equal parts, during the months of October, November, and December, of the current year, (about fifty tons monthly,) at $1.65 per 100 net, invoice weights, cash on arrival, against delivery of documents, less one per cent., accidents to factory, in transit, or force majeure excepted. Subject also to changes, if any, in United States tariff laws during pendency of this contract. L. M. Friedlander. No change in tariff impending. L. M. F.” Muspratt Bros. & Huntley were manufacturers of soda ash at Liverpool, England. In accordance with the contract, Friedlander caused to be shipped from Liverpool 63 tierces, or 113,390 pounds, of soda ash, which arrived on plaintiff's side track at its factory about December 13, 1890. Plaintiff paid duties and freight on the shipment, also the contract price of the goods, amounting in all to $1,698.17. The goods were unloaded by plaintiff. Upon examination the material appeared to have been damaged by water, and plaintiff caused the following letter to be sent to defendant, December 13, 1890: “Dear Sir: The railroad has just delivered your soda to us. On opening it, we find it absolutely unfit for use. The casks have evidently been under water until over half of the soda has soaked away. We wish you would come up and see it at once. Very truly yours, Cream City Glass Co.” On December 19, 1890, plaintiff gave to defendant personally the following notice: “Dear Sir: Please take notice that the shipment of soda ash made by you and received by us on or about the 10th day of December, 1890, under your contract of September 4th, 1890, amounting to about sixty-three casks, was found to be wholly unfit for the uses and purposes for which it was purchased. We therefore notify you that we hereby rescind the said sale, and hereby offer to return to you the said soda ash. We further notify you that said soda ash is now at our factory, subject to your order, and that we hereby demand immediate repayment to us of the purchase price paid by us therefor. Respectfully yours, Cream City Glass Co. Richard Ogden, Sc.” Evidence was introduced tending to show that the soda ash was not suitable for the manufacture of glass, and contained but 34 per cent. of alkali, instead of 48 per cent. The evidence showed, however, that the ash was of some commercial value, though not as much as it would have been worth had it contained 48 per cent. of alkali. Friedlander refused to receive the property back, and in the latter part of January or first part of February, 1891, the plaintiff made a practical test of the material, by using about 6 tierces thereof, amounting to 1,500 or 1,600 pounds, in one of its furnaces, mixing it with the other necessary materials, and endeavoring to make glass. Plaintiff claims that the test showed that glass could not be made from the ash. There was evidence tending to show that it was necessary to use this amount to make a practical test of the material. Upon the question of the effect of this test upon the plaintiff's right of rescission the trial judge charged the jury as follows: “If you find from the evidence that the plaintiff, in making such test, used more of the soda ash in question than was absolutely necessary to determine its merchantable quality, or whether it was fit and proper for the uses for which it was bought and sold, or whether it was in accordance with the contract, or if you find that it was unnecessary to make such test, then such act is inconsistent with such rescission, and you...