Electric Storage Battery Co. v. Waterloo, C.F. & N. Ry. Co.

• Decision Date: 06 May 1908
• Citation: Electric Storage Battery Co. v. Waterloo, C.F. & N. Ry. Co., 116 N.W. 144, 138 Iowa 369 (Iowa 1908)
• Parties: THE ELECTRIC STORAGE BATTERY CO., Appellee, v. THE WATERLOO, CEDAR FALLS & NORTHERN RAILWAY CO., Appellant
• Court: Iowa Supreme Court

116 N.W. 144

138 Iowa 369

THE ELECTRIC STORAGE BATTERY CO., Appellee, v. THE WATERLOO, CEDAR FALLS & NORTHERN RAILWAY CO., Appellant

Supreme Court of Iowa, Des Moines

May 6, 1908

Appeal from Blackhawk District Court.--HON. FRANKLIN C. PLATT Judge.

ACTION to recover the balance of the purchase price of certain storage batteries and electrical equipment, furnished by plaintiff to defendant at defendant's instance and request, and to establish and foreclose a mechanic's lien upon defendant's property to the amount thereof. Defendant pleaded failure of consideration, and also a counterclaim for breach of warranty in the sale of the materials. The case was tried to the court, resulting in a judgment and decree for plaintiff, and defendant appeals.

Affirmed.

Mullan & Pickett, for appellant.

Carr Hewitt, Parker & Wright and W. N. Birdsall, for appellee.

OPINION

DEEMER, J.

The defendant owns and operates a system of electric street railways in the cities of Waterloo and Cedar Falls, an interurban line between said cities, and also an electric line to Denver Junction, in Bremer county. Defendant's power house is located in Waterloo. It has a rotary transformer for its Denver line at the station of Glasgow. It had a storage battery in Cedar Falls for several years prior to the time involved in this case. As the business of the defendant increased, it became necessary to increase its power in Cedar Falls. It had secured the business of delivering coal to the State Normal School, which is located on the outskirts of Cedar Falls on a hill. It did not have sufficient power to move the coal to the Normal during the day without interrupting its other traffic, and was compelled to haul the coal at night. The matter was taken up by Mr. Cass, president of the defendant, with the plaintiff at its office in Chicago, and the objects which the defendant desired, to-wit, sufficient power with which to haul defendant's coal cars to the Normal School, was stated. In November Mr. Osthoff, plaintiff's engineer, who had charge of such matters, came to Waterloo, and made a personal examination of defendant's plant, lines and equipment, with a view of working out a plan which would produce the results required by the defendant. In February of the year 1903, after Osthoff had been at Waterloo, and returned to the plaintiff's place of business, plaintiff wrote defendant a plan for bringing about the results desired, and making a proposition which it was hoped would be satisfactory. This proposition was in writing, and reads as follows:

Chicago Office, Marquette Building, February 19, 1903. Waterloo & Cedar Falls Rapid Transit Co., Waterloo, Iowa--Gentlemen: We propose to furnish and install two couples, consisting of two positive and two negative type F plates in each of your present 215 F-13 glass jars, in your plant at Cedar Falls, Iowa for the sum of $ 4,000. This quotation includes the cleaning of the present battery by us, and also new acid for the present battery. We have assumed that there will be sufficient room to install the additional cells. All additional racks and wire or cable connections between the old and the new cells, and any changes in the present wiring which may be necessary to be furnished and done by you. All material to be first-class and of our latest type, and all work to be done in a first-class workmanlike manner and satisfactory to your company. Two thousand ($ 2,000) dollars or fifty per cent. (50 per cent.) to be paid us upon delivery of the material, and two thousand ($ 2,000) dollars or the remaining fifty per cent. (50 per cent.) when the material is installed. Respectfully submitted by the Electric Storage Battery Co., by Otto E. Osthoff, Engr. Chicago Office. Accepted. The Waterloo & Cedar Falls Rapid Transit Co., by L. S. Cass, President. Routing of shipment to be supplied by Waterloo & Cedar Falls Rapid Transit Co.

Osthoff, plaintiff's engineer, followed this to Waterloo; and it is claimed that, before the proposition was accepted, the parties entered into an oral agreement, whereby the plaintiff undertook and agreed to make such changes and install such additions to the battery of the defendant then in use in Cedar Falls, in connection with other changes in defendant's equipment and additions thereto, as would enable the defendant to operate a freight train, consisting of a twenty-three-ton locomotive and a sixty-ton trailer loaded with coal to the Normal School, at the same time defendant was operating its two twenty-one-ton cars on other parts of its line, as well as its other traffic. Defendant further contends that plaintiff, through its agent, represented and guaranteed that, if defendant carried out the plan proposed, it would produce the results desired. Defendant contends that the real contract between the parties was oral, while plaintiff insists that its agreement is to be found in the proposition before referred to, which defendant accepted; that this embodies the entire agreement, and that parol evidence is not admissible to change or vary the same.

Further it argues that, even if there was a warranty which was not complied with, defendant retained and used the goods for such a length of time, without objection or complaint, as that it should be held to have waived any defects in the property sold. Reduced to its last analysis, defendant's claim is not that there were any defects in the specific items of property furnished, but that as a whole it did not produce the results which plaintiff's engineer promised it would. The exact statement which it is claimed plaintiff made is shown by the testimony of one of defendant's witnesses, as follows: "When Mr. Osthoff came to my office in February, after I had received the written proposition and recommendations, we made up the figures as to the cost of making the changes and improvements set out in Mr. Osthoff's letter of February 19th. The figures amounted to fully the cost of installation of a rotary transformer station, and this fact was stated by me in the conversation. When Mr. Osthoff came in, I had the figures all prepared. We went over them, and I said to Mr. Osthoff: 'Now, Mr. Osthoff, this expenditure of money will install a rotary transformer station at Cedar Falls, and give us something that we absolutely know there is no question about doing our business. Now, if you know and will guarantee that this expenditure of money will produce the results that you know we must have, which you are thoroughly familiar with, we will buy this battery from you, and permit you to go ahead and install an electric battery; but, if you are not prepared to guarantee absolutely and positively that this will do the work, then we propose to throw out the battery and expend this money by putting in a rotary transformer.' Mr. Osthoff said: 'There is absolutely no question but that with the expenditure of this money, you will have very much better results...