Forster, Waterbury & Co. v. F. Mackinnon Mfg. Co.

• Decision Date: 08 January 1907
• Citation: 110 N.W. 226,130 Wis. 281
• Parties: FORSTER, WATERBURY & CO. v. F. MACKINNON MFG. CO.
• Court: Wisconsin Supreme Court

130 Wis. 281

110 N.W. 226

FORSTER, WATERBURY & CO.

v.F. MACKINNON MFG. CO.

Supreme Court of Wisconsin.

Jan. 8, 1907.

Appeal from Circuit Court, Wood County; Chas. M. Webb, Judge.

Action by Forster, Waterbury & Co., a corporation, against the F. MacKinnon Manufacturing Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Action to recover on a sale contract between plaintiff as seller and the defendant as purchaser, the terms of which were as follows:

“To..The F. Mackinnon Mfg. Co.:

+-----------------------------------------------------------------------------+
                ¦Quantity¦40 tons malleable castings.                                         ¦
                +--------+--------------------------------------------------------------------¦
                ¦        ¦Patterns to be furnished by buyer. Castings to be good and suitable ¦
                ¦        ¦quality for hub bands. Buyer to have the privilege of returning any ¦
                ¦        ¦imperfect castings.                                                 ¦
                +--------+--------------------------------------------------------------------¦
                ¦Price   ¦5 1/4¢ per pound in car load lots on cars, Centralia, Wisconsin.    ¦
                +--------+--------------------------------------------------------------------¦
                ¦Terms   ¦Freight cash, to be paid by buyer, balance cash thirty days from    ¦
                ¦        ¦invoice date.                                                       ¦
                +-----------------------------------------------------------------------------+
                

Settlement other than net cash at Chicago, or by Chicago or New York draft, must include exchange. Notes must be for net amount, including interest and collection charges. All settlements must be made within thirty days from invoice date, unless otherwise specified.

Shipments to be Made--One car about Jan. 1st, 1900. Balance prior to July 1st, 1900.

Via C. M. & St. P. Ry.

Freight Rate.

In case of accident or other cause, causing the stoppage or partial stoppage of the works of either the sellers or buyers, the deliveries herein contracted for may be suspended, or at the option of the party not in default may be cancelled during the continuance of said interruption. Such suspension or cancellation shall not invalidate the remainder of the contract, but on the removal of the cause of the interruption the deliveries shall be continued at the specified rate, and if the overdue deliveries shall not have been cancelled they shall be made then at the regular rate, commencing when the contract would otherwise have ended.

Forster, Waterbury & Co.”

There was a preliminary memorandum in respect to the matter in the following words:

“Centralia, Wisconsin, November 20th, 1899.

Forster, Waterbury & Co., 358 Dearborn St., Chicago, Ill.

Memo. of agreement between the F. MacKinnon Mfg. Co. and Forster, Waterbury & Co. That the F. MacKinnon Mfg. Co. do contract with Forster, Waterbury & Co. for forty tons of malleable castings, at 5 1/4¢ per pound, in car lots, f. o. b. Centralia. Terms thirty days. The malleables to be suitable for the purposes required, and to be tough enough to stand the hydraulic pressure required of them. All defective malleable to be returned.”

The F. MacKinnon Mfg. Co., F. MacKinnon, Secy.”

The final contract embodied the provisions before indicated. Soon after deliveries commenced the defendant complained that the malleables were defective, in that the dovetailed slots in the rims of the castings were more or less filled up and the castings were so brittle that many of them broke under the necessary pressure applied to place them on the wooden centers of the hubs. The malleables were intended for use as part of the make-up of wagon hubs. Complaints as to the defective character of the malleables continued from time to time as deliveries were made and the castings were tested, and finally before the contract was wholly filled defendant rescinded it and refused to take any more of the castings. Subsequently this action was commenced to recover an alleged balance due of $776.44. The issues tendered by the complaint sufficiently appear by the summary of the findings hereafter given.

The defendant answered, among other things, counterclaiming for $3,163.80, for damages on account of the castings not being according to contract. The allegations of the counterclaim were duly put in issue, and all issues were referred to a referee to hear, try and determine with this result: (1) The contract between the parties was as indicated in the foregoing. (2) The meaning of the term “castings to be good and suitable quality for hub bands,” as the parties understood it, was the same as the idea contained in the preliminary memorandum by the words “the malleables to be suitable for the purposes required, and to be tough enough to stand the hydraulic pressure required of them,” and plaintiff knew the manner of placing the malleables on the wooden hubs and all requirements in that regard. (3) Plaintiff delivered to the defendant castings of the value at the contract price of $3,959.17, and did work on patterns and paid for freight chargeable to the defendant to the amount of $233.75, making a total of its charges of $4,192.93. (4) Plaintiff claimed $5.50, freight on defective castings returned and $98.86, for 1883 lbs. of castings shipped August 6, 1900. The former is disallowed because the castings were returned under the contract, the latter is allowed because the defendant included it in its statement to the plaintiff showing the amount of its credits and remitted the balance thus shown to be due. (5) The true amount of plaintiff's credit is $4,187.23. (6) Defendant is entitled to credit for freight paid $177.76, for shortage and defective castings $116.97, 1¢ per pound as per settlement on account of labor on the first shipment of castings to render them fit for use, making $49.59, and for cash paid from time to time $3,279.74, making a total of $3.624.06, and leaving a balance due plaintiff, exclusive of defendant's counter-claim, of $563.16. (7) The defendant's claim for damages on account of defective malleables not used is disallowed, because it is in a great part guesswork; not sufficiently proved and, in effect, an attempt to relieve defendant from the dead stock of castings left over after an unsuccessful experiment with a patented article. The claim as to costs of repairing and extra cost of putting in tie plates in castings used not included in the first shipment is disallowed, because no complaint was made in the correspondence between the parties after defendants' patterns were perfected, and because the witnesses testified that no more work was done on malleables furnished by plaintiff than on those made by other manufacturers. The claim for 1/2¢ per pound on castings used is not satisfactorily supported by evidence and appears to have been an after-consideration to help defendant out as to dead stock. (8) Defendant is entitled to credit for 5,312 pounds of defective castings, to the amount of $258.66, and a further credit, on account of 397 defective castings weighing 2,314 pounds, of $114.65, and a further credit of $156.80, for hubs destroyed by reason of the defective castings. (9) The total allowed on the counterclaim is $530.11, leaving a balance due the plaintiff of $33.06.

Upon a hearing before the court the findings of the referee were modified by allowing defendant an additional credit for shortage in castings and culls of $25.20, leaving the balance due plaintiff, $7.86, and as so modified were confirmed and judgment was rendered accordingly.

No complaint was made by the plaintiff of the conclusions reached by the referee or the circuit court. Defendant duly preserved for review upon appeal the questions discussed in the opinion.

Goggins & Brazeau, for appellant.

W. E. Wheelan, for respondent.

MARSHALL, J. (after stating the facts).

Appellant makes the following claims: (1) The court should not have allowed respondent the $98.86, for 1,883 pounds of castings shipped August 6, 1900. (2) There should have been allowed appellant an additional credit on its counterclaim of $255.38, for extra cost of putting in tie plates, occasioned by defective dove-tailed slots and brittleness of malleables. (3) An additional amount of $411.38, should have been allowed on the counterclaim for defective quality of the unused castings on account of their not being properly annealed and not manufactured so as to avoid the defects called cold-shuts. (4) An additional amount of $169.65, should have been allowed on the counterclaim on account of expense of working off defective stock at reduced prices. (4) A further sum of $156.80, should have been allowed on the counterclaim on account of hub cores that would be destroyed in using the balance of the castings.

At the outset it is suggested that some improper evidence was received from a witness produced by respondent, but as it is not claimed that such evidence affected the result and counsel fail to do more than merely make the suggestion that such evidence can be found in the record, we pass the subject without further notice.

As to the $98.86, claimed to have been erroneously allowed respondent, we cannot agree with appellant. It appears, as the referee found, that the item was included by appellant in a statement rendered in the usual way; not as a matter of compromise and settlement, so far as we can see. Moreover, the statement...