Exhaust Ventilator Co. v. Chi., M. & St. P. Ry. Co.

• Decision Date: 15 May 1886
• Citation: 66 Wis. 218,28 N.W. 343
• Court: Wisconsin Supreme Court
• Parties: EXHAUST VENTILATOR CO. v. CHICAGO, M. & ST. P. RY. CO.

66 Wis. 218

28 N.W. 343

EXHAUST VENTILATOR CO.

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

May 15, 1886.

Appeal from county court, Milwaukee county.Frank M. Hoyt, for appellant, Exhaust Ventilator Co.

J. W. Cary and B. Hanson, for respondent, Chicago, M. & St. P. Ry. Co.

ORTON, J.

The complaint sets out a contract as follows: The plaintiff agreed, in consideration of $600, to sell and deliver to the defendant three 60-inch Blackman's exhaust fans, for the blacksmith shops of the defendant in South Minneapolis, in the state of Minnesota; and agreed, in consideration aforesaid, that said fans should exhaust the smoke and gases in a satisfactory manner; and that if said three fans would not exhaust the said smoke and gases in a satisfactory manner, then the said plaintiff, upon demand and notice, would furnish a sufficient number of said fans to do the said work without extra charge; and the said fans were not to be paid for by said defendant until they were entirely satisfactory to the said defendant. And it was further agreed that said defendant should set up said fans in a proper place in said shops, connect them with power, and run them at a proper rate of speed, according to size and location, and with driving power of sufficient strength at all times. The complaint sets out the breach as follows: The plaintiff, in pursuance of said agreement, delivered said three fans to the defendant at Chicago, Illinois, and the defendant immediately transported them to Minneapolis, over its railway, where they remain in possession of the defendant; that the said defendant did not and would not set said three fans, or any or either of them, running at or in its said shops at Minneapolis, and never tried or tested the same in their said shops, as it was their duty, within a reasonable time, to have done, but refused to set the same, or either of them, running or at work in their shops; that said fans, if properly set and operated in said defendant's shop, would have exhausted the smoke and gases therefrom in a satisfactory manner to said defendant; that said defendant retained said fans in its possession, and never gave the plaintiff notice to furnish, and never requested the plaintiff to furnish, any other or further number of fans for the doing of the work mentioned in the contract; that the plaintiff requested the defendant to test and try said fans in that way, or pay said $600, and the defendant refused to do either, and stated that said fans, by any kind of trial, could not be made to exhaust the smoke and gases from said shops in a satisfactory manner, and that, therefore, he would not set up or try said fans, or pay for the same, and it has had a reasonable time to do so; that said fans were all well made, perfect in their construction and workmanship, and in all respects the kind of fans called for and described in the contract.

The answer sets up the following as the contract referred to in the complaint:

“I agree to furnish C., M. & St. P. Ry. Co. three 60-inch Blackman's exhaust fans for their blacksmith shop in South Minneapolis for the sum of $600, and guaranty that they will exhaust the smoke and gases in a satisfactory manner. If not, we will furnish a sufficient number to do the work without extra charge.” “The same not to be paid for until satisfactory to the C., M. & St. P. Ry. Co.

+--------------------------------+
                ¦[Signed]¦THOMAS PHILLIPS, Agent.¦
                +--------------------------------+
                

Accepted. J. T. CLARK, Gen'l. Supt. C., M. & St. P. Ry.”

The answer avers that the fans were delivered, and that thereupon the defendant made investigation into the merits and workings of said fans for the purpose of ascertaining and becoming satisfied whether or not said fans would exhaust the smoke and gases from the blacksmith shop at South Minneapolis in a satisfactory manner, which was the only purpose for which the defendant wanted or could use said fans; and that upon such investigation it was informed, and it became entirely satisfied, that said fans could not be made or used in its shops to exhaust the smoke and gases therefrom in a satisfactory manner; and thereupon it notified said plaintiff that said fans were not satisfactory to said defendant, and that they could not be made to exhaust the smoke and gases from said shops in a satisfactory manner; and that, therefore, it, said defendant, would not receive, set up, or pay for said fans. There is a denial of each and every allegation of the complaint not admitted. From the order overruling a general demurrer to the answer this appeal is taken.

The pleadings are so fully stated in order to show the essential difference between the complaint and the answer, and the agreements set up therein. The only question is whether, conceding the agreement to have been as set up in the answer, and to have been declared upon with proper averments, the answer sets up a good defense. This appears like an awkward way of treating a demurrer to an answer. The answer really sets up a new cause of action not stated in the complaint, and then answers it. The answer scarcely relates to the complaint, except as a denial of its allegations of a certain agreement, its performance by the plaintiff, and its breach by the defendant. In strictness of pleading, the answer would have been sufficient as a denial of all such allegations, without setting up another contract not sued upon, and to that extent it is a sufficient answer, and not liable to demurrer, and therefore the demurrer was properly overruled. But the learned counsel on both sides have treated the agreement set out in the answer as the one declaredupon, and the other averments in the answer as a defense to such a complaint, and in their arguments and briefs the above question, although informal, is the only one considered. We shall therefore decide the question whether the answer sets up a good defense to such a complaint. The complaint alleges “that it was agreed that the defendant should set up said fans in a proper place in said shops, connect them with power, and run them at a proper rate of speed, according to size and location, and with driving power of sufficient strength at all times.” There is a warranty that “they [the fans] will exhaust the smoke and gases in a satisfactory manner.” If this is a warranty, and this language would seem to mean nothing less, it should be construed strictly, and the above clause in the agreement would seem to make it conditional upon the test and trial therein agreed to be made. The “satisfactory manner” in which they are warranted to work must be determined by such tests, and in no other way. Such is the agreement of the parties, and would appear to be as binding as any other part of the contract. The defendant may have the right to insist that they shall work in a manner satisfactory to himself, and may determine whether they will so work for himself, but he must make that determination only upon and after the test and trial provided for in the agreement. This would seem to be the doctrine of the authorities as well as of reason.

In Manny v. Glendinning, 15 Wis. 50, the language of the contract, by some testimony, was that the purchaser “ should take the reaper home, and try it, and if it did not do good work he should bring it back.” Mr. Justice PAINE says in the opinion: “The substantial meaning of the contract in either form was that the vendor warranted the reaper, when properly put together and managed, would work as stated, and that if it did not, or would not, which is the same thing, it might be returned.”

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