E. Edelman & Co. v. Queen Stove Works

• Decision Date: 24 March 1939
• Docket Number: No. 31907.,31907.
• Citation: 284 N.W. 838,205 Minn. 7
• Court: Minnesota Supreme Court
• Parties: E. EDELMAN & CO. v. QUEEN STOVE WORKS, Inc.

284 N.W. 838

205 Minn. 7

E. EDELMAN & CO. v. QUEEN STOVE WORKS, Inc.

No. 31907.

Supreme Court of Minnesota.

March 24, 1939.

Appeal from District Court, Freeborn County; Norman E. Peterson, Judge.

Action by E. Edelman & Co. against Queen Stove Works, Inc., to recover balance of purchase price of generators sold to defendant. The defendant filed a counterclaim. From an order denying defendant's motion for a new trial after verdict for plaintiff, the defendant appeals.

Order reversed.

Meighen, Knudson & Sturtz, of Albert Lea, for appellant.

Morgan & Nichols and Kent C. Van Den Berg, all of Albert Lea, for respondent.

GALLAGHER, Chief Justice.

Appeal from an order denying defendant's motion for a new trial.

E. Edelman and Company, plaintiff, whose principal place of business is in Chicago, is a manufacturer of testing equipment and automotive replacement parts. The manufacture of rebuilt generators is incidental to its business. Queen Stove Works, Inc., defendant, whose principal place of business is in Albert Lea, manufactures oil heating apparatus and gasolene pressure stoves. In 1935 it considered adding to its line the manufacture of wind-chargers, battery-charging units similar in appearance to a small windmill. It planned to make in its factory all the parts of the windcharger except the generator, the wiring and the meter for the instrument board.

Having been informed that plaintiff was furnishing generators for a competitor, defendant communicated with plaintiff by letter and later Mr. Trow, defendant's president, and Mr. Murphy, a salesman for a radio company, journeyed to Chicago where they interviewed plaintiff's sales manager, Mr. Wray, and some of its technical experts. What was said at this conference has considerable bearing on the issues here involved. We quote from the testimony of Mr. Wray:

"Q. Did you have any further talk with Mr. Trow as to how these generators were to be made, that you discussed there while at your office? A. In detail at the time he was there, up to the point — and the specifications written, and up to the point that he says that as soon as he got back to the factory, he probably would want some samples, and would be in a position to place an order. That is the notations while he was at my desk, that I made on his first visit; that he wanted the generator to cut in at 4 to 500 revolutions per minute, and he asked me to make those notations so there would be no misunderstanding when his order came in, and the generators were to charge at least 8 to 10 amperes at 1,000 revolutions per minute.

"Q. That was a part of your talk at your office ? A. Yes, sir, and I made the notations that when his order came, instead of putting down all the details, they would be made from these notations. The armatures — the generators we had previously made for the Dunn Manufacturing Company — contained, or had assembled into them these cutout screws, two screws on top of the shell, that another piece was fastened to the generator with. He said there was no use — we didn't need those screws. We furnished the Dunn Manufacturing Company a generator that had a gear on the end of the shaft. He said I have no use for that gear; don't put it on there; that notation was made. We made an improvement for him over the generator made for Dunn, in that we placed a felt retainer or washer inside of one end of the generator. The reason for that was that when he advised me that the generator tipped up in the air it was liable to have water come down into the generator, and this was an improvement for which he paid, placing this felt retainer or washer on the inside of the generator. * * *

"Q. Who suggested those improvements ? A. That I don't remember, except in the conversation between us, he wanted an improvement, and when that tipped up in the air, as I remember his device that he was to use this on, he tried to explain it to me, that when it obtained a certain speed, the generator would tip, and stand up on end, and he was afraid the water would run down in there. Well, any mechanic would figure out some way to keep that water from running in there, and we decided to use a felt washer saturated with oil, that would keep the water from running down in the generator when it was tipped up."

Mr. Trow testified:

"Q. And tell us your conversation fully with Mr. Wray, that day. A. We started back at the beginning of our experience in the windcharger business, and led up to what had happened in connection with the Zenith charger, and told him that we understood that he was selling a remade, or reconditioned Ford generator to the Dunn Company at Clarinda, and asked him if it would be possible for us to buy that same generator, and he said yes, and we explained to him that we didn't know much about making windchargers, and knew less about generators, and asked a lot of questions as to what he thought we should have in the way of a generator for this windcharger of ours, that would do a satisfactory job, insofar as charging a farm radio battery is concerned. He wanted to know if we had a picture of our charger, and we showed him these three photographs we have shown here, and explained how the charger operated, and naturally, he was interested in the governor, and we explained that to him, and he wanted to know all about the propeller, because that was something new he had not seen before, and he told us that he was furnishing those generators to Dunn, as I remember it, at $2.80 and he says, we can furnish you the same generator at the same price. He says, as far as I know, it is doing a satisfactory job for them, and I am sure it will do a satisfactory job for you. I do remember there was one point that came up, and that was that due to the fact that our propeller tips up when it is pulled out of operating position, he suggested it would be a good idea for me to put this felt washer which he spoke of, in the head of the generator, so as to prevent any moisture from getting in when the generator was tipped up in that position and not operating, but when the generator was operating, and was turning so fast, there was no danger of any water getting in there to cause any trouble. He took us out, I remember, into the plant, and he showed us a stock of these Ford generators — I don't know how many but there were a large number of them that they had stacked up in different bins, to show us he had a big stock of generators he was furnishing Dunn, and could furnish to us, so we didn't have to worry, — he could take care of all the business we could turn over to him, and then he took us over to a bench and called some man over there to show us just how they would test every one of these generators, so we could absolutely depend on them, and every generator would do what he told us it should do in order to do a satisfactory job of charging, so I — on the strength of what he told us, we went back in the office, and talked over more details, and on the strength of what he told us we says, all right, we would give him the business, and when I get home, I will mail him an order.

"Q. Had you at that time ever seen a Dunn charger? A. No, sir.

"Q. Didn't you know what they looked like? A. No, sir.

"Q. Have you ever seen a picture of one? A. Not that I can remember of.

"Q. Do you know how many amps it was necessary to charge in order to properly charge a battery? A. Mr. Wray told us if we could furnish — if the generator furnished up to six or seven or eight amps, that was a good charge with a radio battery.

"Q. Had you ever had any electrical training? A. None whatever.

"Q. Know anything about generators or electricity? A. No, sir.

"Q. At that time was anything said about gears? I notice the order says, no gears. A. I presume there was. I presume that Mr. Wray explained that ordinarily these generators came with a gear on the end of the shaft, and we knew how we intended to make the propeller hub, and we didn't need that gear on there so it was understood that the gear was to be taken off.

"Q. There is a statement on the order blank which says, no cutout screws; who framed that statement? A. I don't know; I can't remember. I imagine there must have been some part of the apparatus that we attached to the generator, or we expected to put a screw right back into the screw hole in the generator case, but after looking at the generators as we received them, I cannot understand how that can be because some of these generators that we got had some screws, and some of them didn't have screws in. * * *

"Q. What further talk, if any, did you have with Mr. Wray, about the purpose for which the generators were to be used? * * * A. We asked him if the bearings would all be in good shape, and he said yes, that if any of these generators, when they were disassembled, if the bearings were worn or cracked, not in first class shape, they would replace them with new bearings, and if the commutators were worn down below a certain — I think it was beyond 20 per cent of normal size, they would be replaced with new ones, and all of the armatures were to have a certain sized wires, and a certain number of windings, so that they would cut in at between four and five hundred. * * * "Q. Did you direct or state the size of the wire to be used? A. No. * * *

"Q. Did you know what size wire should be used ? A. No, sir. * * *

"Q. Did you know what the Dunn generator was ? A. No."

There was other testimony, particularly that of Mr. Murphy, that might well be included, but so to do would unduly lengthen this opinion. Suffice it to say that it quite fully corroborates that given by the witness Trow to the effect that defendant relied to some extent at least on plaintiff's judgment in ordering the generators.

Shortly after the Chicago conference and under date of August 22, 1935, defendant mailed to plaintiff an order for 1,000 generators. It reads:

                                    "Queen Stove Works, Inc
                To: E. Edelman & Co
                     [etc.]

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