Fuller-Warren Co. v. Shurts

• Decision Date: 07 April 1897
• Parties: FULLER-WARREN CO. v. SHURTS ET AL.
• Court: Wisconsin Supreme Court

95 Wis. 606

70 N.W. 683

FULLER-WARREN CO.

v.SHURTS ET AL.

Supreme Court of Wisconsin.

April 7, 1897.

Appeal from circuit court, Waukesha county; Warham Parks, Judge.

Action by the Fuller-Warren Company against Ann T. Shurtz and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

This was an action to foreclose a mechanic's lien against the dwelling house of the defendant Ann T. Shurts and a subsequent incumbrancer of the premises, founded upon a contract, consisting of a proposition and acceptance thereof, to wit: “Milwaukee, Wis., Sept. 6, 1894. Mrs. Ann T. Shurts, Waukesha, Wis.: We herewith give you estimate and specifications for heating your new house on lot 9, block 6, Hadfield's addition, Waukesha, Wis., as follows: We will furnish and set up one No. 290 furnace, inclosed in galvanized iron case, and properly connected to chimney, with good galvanized iron smoke pipe, and to furnish all heating pipes, properly connected to stacks and registers, according to certain specifications, leaving the furnace complete and ready for use, for the sum of $225, with a guaranty of the capacity of the furnace, under proper management, to heat all rooms with registers connected with furnace, on first floor, to 70 degrees, F., when temperature outside indicates 20 degrees below zero, and at the same time to heat all rooms on the second floor, connected with the apparatus, to 70 degrees; provided that, in the event of failure, we are immediately notified of such failure of said furnace so to heat said rooms. In case of said failure, and notice of the same, we shall have an option of making said apparatus heat said rooms as agreed, or to remove the same; we refunding the money paid thereon. [Signed] The Fuller-Warren Company, by W. H. Bowers.” At the foot was an acceptance, signed by the defendant, as follows, to wit: “The above proposition is satisfactory, and I accept the same.” The plaintiff is a corporation engaged in the business of manufacturing and selling stoves, ranges, furnaces, etc. The defendant, admitting the execution of the contractand guaranty, alleged that said furnace, having been set up, was fully tested, and proved to be entirely unsatisfactory and deficient, and that the plaintiff was notified of the defects and failure to comply with the terms and conditions of the warranty in November, 1894, and that it was turned over to said plaintiff because of said defects and failures; that the plaintiff thereupon took charge of the furnace, and attempted to remedy said defects and make it comply with the warranty, but that it had wholly failed to do so, and that in consequence it then was, and always had been, defective and dangerous, and unfit for use as a furnace, in that it did not properly heat said house, and that by reason of the generation and escape of gases therefrom it had been and was dangerous to the health of the defendant and the members of her family occupying the house; that it had never been accepted, and had been a source of great annoyance and damage, and was absolutely valueless. The answer contained a counterclaim for damages. At the trial the court found that the contract and guaranty had been executed as stated, and that, upon test of the furnace after it was set up, it proved to be defective and unsatisfactory, under the requirements of the contract, or for the necessary use for which it was designed, of which the plaintiff had immediate notice; that it attempted to remedy such defects, and during the winter of 1894-1895 attempted to put said furnace and apparatus in proper condition to perform its functions under the agreement, and serve the purpose for which it was designed, but failed to make the same comply with said written guaranty; that it had at...