Dunck Tank Works, Inc. v. Sutherland

• Decision Date: 08 November 1940
• Citation: 236 Wis. 83,294 N.W. 510
• Parties: DUNCK TANK WORKS, Inc., v. SUTHERLAND.
• Court: Wisconsin Supreme Court

236 Wis. 83

294 N.W. 510

DUNCK TANK WORKS, Inc.,

v.SUTHERLAND.

Supreme Court of Wisconsin.

Nov. 8, 1940.

Appeal from a judgment of the Circuit Court for Rock County; Jesse A. Earle, Judge.

Modified and affirmed.

Action begun September 17, 1938, by the Dunck Tank Works, Inc., against Frank Sutherland, trustee of the City Beverage Company, a bankrupt, to recover balance due on the purchase price of four pressure tanks. From a judgment dismissing plaintiff's complaint and awarding $850 damages to the defendant on a counterclaim for breach of warranty, plaintiff appeals.

The complaint alleges the making of a contract; that the plaintiff has performed its part; that defendant has failed in the matter of payment; that there is now due on it the sum of $672.75, with interest. The answer admits the making of the contract and that the defendant has only paid part of the contract price, to wit, $850; denies that the tanks were as represented; and by way of counterclaim alleges that a warranty existed that the tanks would be reasonably satisfactory for the purposes for which the defendant was purchasing them; and that plaintiff has been repeatedly notified that the tanks were not equal to the purposes expected of them; and alleges “that they are not, in any sense, pressure tanks *** that in fact, said tanks are only storage tanks and can serve only storage purposes,” and demands damages for the breach of warranty.

The case was tried to the court without a jury and the findings of fact and conclusions of law are that the contract was made; that the agreed price was $1,500; that the tanks were installed in the defendant's brewery and $850 of the purchase price paid; that the plaintiff knew the purpose for which the tanks were purchased and warranted they were suitable therefor; that the tanks were defective; and the court rendered a judgment dismissing the complaint and allowing $850 on the counterclaim. From this judgment plaintiff appeals. Other facts necessary to an understanding of the case will be referred to in the opinion.Weinstein & Kline, of Milwaukee, for appellant.

George S. Geffs, of Janesville (Eli Block, of Janesville, of counsel), for respondent.

FAIRCHILD, Justice.

There was a conditional sales contract entered into August 8, 1933, under which the appellant was to deliver four pressure tanks to be used in respondent's brewery for the sum of $1,500.

Under the pleadings in this case appellant seeks to recover the agreed price of the goods delivered and the respondent seeks to recover on a counterclaim for breach of warranty. The tanks were porous and unfit for use as pressure tanks. They were never successfully used as pressure tanks, but were used from time to time as storage tanks. Other pressure tanks were purchased from other manufacturers in 1934 and 1935.

After tests had shown the porous quality of the tanks, respondent communicated the fact to appellant. Appellant advised respondent to apply a treatment to the heads of the tanks in the hope that the seepage would stop. This treatment failed to make the tanks useful as pressure tanks. One time in the summer of 1934 appellant sent repair men to look at the tanks. A substance called mammet was placed on the tank heads, but this effort likewise failed to condition the tanks for use as pressure tanks.

The trial court did not make a formal finding on the question of the use of the tanks as storage tanks, but he did say in his memorandum opinion “the testimony further shows that although the tanks were unsuited for the purpose for which they were purchased, that they might be used for storage tanks.” And evidence on the use of the tanks as storage tanks would permit of no other finding than that such tanks were at times put to such use.

[1][2][3] There is a conflict in the evidence as to just what took place at the time appellant's representatives visited the brewery for the purpose of repairing the tanks. Appellant claims its agents were asked not to make repairs in the summer and that although a promise was made to notify it when...