J. L. Latture Equipment Co. v. Gruendler Patent Crusher & Pulverizer Co.

• Decision Date: 01 July 1930
• Citation: 289 P. 1067,133 Or. 421
• Parties: J. L. LATTURE EQUIPMENT CO. v. GRUENDLER PATENT CRUSHER & PULVERIZER CO. [a1]
• Court: Oregon Supreme Court

289 P. 1067

133 Or. 421

J. L. LATTURE EQUIPMENT CO. v. GRUENDLER PATENT CRUSHER & PULVERIZER CO. ^[a1]

Supreme Court of Oregon

July 1, 1930

In Banc.

Appeal from Circuit Court, Multnomah County; J. U. Campbell, Judge.

Action by the J. L. Latture Equipment Company against the Gruendler Patent Crusher & Pulverizer Company, wherein defendant filed a counterclaim. From the judgment, both parties appeal.

Affirmed.

Beach, Simon & Greene and E. W. Grant, all of Portland, for appellant.

Albert L. Gordon, of Portland, for respondent.

BEAN J.

This is an action at law tried by the court without a jury. Findings of fact were made and judgment entered in favor of plaintiff for a part of the amounts claimed by plaintiff; both parties appealed.

Plaintiff is an Oregon corporation. The defendant is a corporation organized under the laws of the state of Missouri. Its principal office is at the city of St. Louis.

As alleged and as it appears in the record, plaintiff purchased from defendant on trial on April 13, 1927, at Portland, Or one No. 6x steel frame Gruendler monster crusher with trap-iron catcher at the agreed price of $4,063 f. o. b factory at the city of St. Louis. The defendant guaranteed the crusher in writing as follows:

"This order is confirming our conversation whereby this machine is put in on trial, being guaranteed to produce twenty yards of one-half inch material per hour, or forty yards of three-fourth inch material, crushing either gravel or quarried rock; also that the maintenance cost will not exceed .02¢ per ton. The above is with the understanding that not less than seventy-five H. P. be used on this machine."

Plaintiff asserts that, relying upon the warranty about August 12 1927, it paid the defendant the sum of $1,489, and J. W. and J. R. Hillstrom, who purchased the crusher from plaintiff, about August 20, 1927, paid defendant, for plintiff, $885; that the crusher failed to fulfill the warranty, and said J. W. and J. R. Hillstrom rejected the crusher; that the crusher was first put in operation about July 8, 1927, and kept in operation, as far as possible, until about November 1st of that year. Soon after July 14, 1927, the crusher failed utterly to comply with the warranty, notice of which was given to defendant. After continuous, but unsuccessful, efforts upon the part of defendant to make the crusher comply with the warranty, the same was rejected by plaintiff about November 1, 1927.

The defendant admits the sale and the guaranty as set forth above; alleges that the machine was not properly used, but that wet gravel was crushed, and that plaintiff, by Hillstrom Bros., used and tested the machine for a sufficient time to inform plaintiff of its capacity and fitness, and thereafter accepted the same and purchased other machines of defendant. Defendant also counterclaimed for the price of the machine.

The court found that the crusher was valueless; that plaintiff has ever since November 1, 1927, held the crusher subject to defendant's orders; has demanded repayment; that plaintiff sold the crusher to Hillstrom Bros., contractors of Marshfield, Or., under a similar guaranty, and, upon delivery, the said crusher was transported to Curry county and set up by Hillstrom Bros. and set to work crushing gravel taken from the bed of Pistol river, where its work upon the larger sized material, for about a month, was fairly satisfactory, during which time the $1,489 was paid by plaintiff to defendant, but, when the crusher was put to producing a smaller material, namely, the three-quarter inch material, that part of the crusher usually referred to as the hammers failed.

The court further found as follows: "That the profit on resale by plaintiff corporation to the said J. W. and J. R. Hillstrom was the sum of $1,837.00, but the court finds that plaintiff waived its right of rescission or rejection by not acting promptly and that in equity and good conscience plaintiff is not entitled to recover any profit on resale of said machine or any part thereof."

The rock crusher failed to comply with the said warranty. Plaintiff paid the sum of $313.54 freight and express upon parts furnished by defendant to plaintiff in an endeavor to make the rock crusher operate satisfactorily; and paid $579 freight on rock crusher, $263.85 freight from Marshfield, Or., to Ewing, Or., where the crusher was shipped at the request of the defendant for the purpose of trying the same on quarry rock, and as follows:

"That the defendant, by its conduct acquiesced in the plaintiff waiving its right of rescission or rejection by not acting promptly and with knowledge that the machine was not performing according to its guarantee and has waived its right of insisting that plaintiff should be bound but the court finds that in equity and good conscience the plaintiff is not entitled to any damages by reason of the said rock crusher having failed to comply with the said warranty.

"As to plaintiff's second cause of action the court finds that plaintiff paid the sum of $579.00 freight upon rock crusher manufactured by defendant corporation known as shop No. 8554, the sale of which said crusher by defendant to plaintiff was rescinded and the title thereto now rests in defendant corporation."

That the parts supplied by defendant to plaintiff sought to be recovered in defendant's counterclaim were supplied in an endeavor to make the Hillstrom crusher operate satisfactorily and in accordance with the guarantee and without any agreement on the part of plaintiff to pay for the same.

The court found plaintiff was entitled to recover from defendant $1,489 paid on the purchase price; $579 freight from the factory to Marshfield, Or.; $313.54 freight and express paid on parts supplied for the crusher, and $263.85 freight on crusher from Marshfield to Ewing, Or.; and $579 freight paid from the factory to Portland, Or., upon another crusher purchased by plaintiff of defendant September 29, 1927, shop No. 8554, which defendant agreed to repay to plaintiff.

The first assignment of error involves a motion of defendant to strike portions of the complaint. The cause having been tried by the court without a jury, it is unnecessary to pass upon this question, except as it may be embraced in other issues. The second assignment of error pertains to the refusal of the court to require plaintiff to elect the remedy it intended to pursue. This question may be considered with the other assignments of error.

The third assignment of error is that there is no evidence to support the finding of the trial court of payment of freight and express upon the rock crusher, or parts thereof.

There was no controversy as to the question that the findings of the court upon the trial of a law action, without a jury, are of the same force and effect as the verdict of a jury. We are not to weigh the evidence, if conflicting, but are simply to inquire if there is any substantial competent evidence to support the findings.

A reference to pages 76, 77, and 194 of the transcript of evidence discloses proof that the freight on the crusher and the freight and express on parts furnished to be used on the crusher, and also $579 freight paid on the second crusher contracted by plaintiff, which was returned to defendant, were paid by plaintiff. The testimony amply supports such findings of the trial court.

Mr. William Gruendler, president of the defendant company, when a witness, stated when the matter of the freight on the second crusher was called to his attention, in an interrogatory thus: "Mr. Latture has paid $579 freight on it (second crusher) from the factory here? Answer: We have never refused to pay the freight, if it was returned." So it seems that the amount of freight which was the same on the two machines mentioned is not questioned, and the same may be said in regard to the express and freight on parts.

Passing to assignment of error No. 5, it is, in effect, that the findings of fact made by the court do not entitle the plaintiff to any relief or judgment in its favor whatsoever. This contention is based largely upon the construction of the finding No. VI quoted above.

Taking the gist or an abstract of the findings, the court found the contract of purchase of April 13, 1927, which is not questioned, the contract of guaranty; that the crusher, upon being fairly tested, did not fulfil the requirements of the warranty; that the parts supplied by defendant to plaintiff were supplied in an endeavor to make the Hillstrom crusher operate satisfactorily and in accordance with the "guaranty," and without any agreement on the part of plaintiff to pay for the same; the crusher was the property of the defendant, and the title thereto never passed to plaintiff; defendant is now entitled to the possession thereof; and all of the facts in regard to the payment of freight and express; and as a conclusion that the plaintiff is entitled to recover the amount paid on the purchase price and freight upon the two crushers and freight and express paid on the crusher parts supplied therefor.

The objections to the findings of fact are largely as to the form thereof on account of the reference to a "rescission or rejection" of the crusher. It seems that the word "rejection" explains the meaning of the word "rescission" as they are used.

The facts of the case are portrayed in the record. The real question is: What are the rights of the parties under the circumstances?

One word in regard to briefs. The writer believes that this case is far from one that should be submitted on the briefs without an oral explanation of the circumstances attending the deals pertaining to the various crushers mentioned in the record. We will proceed to dig the question out as best we can.

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