Lake Superior Loader Co. v. Huttig Lead & Zinc Co.

• Decision Date: 31 July 1924
• Docket Number: No. 24002.,24002.
• Citation: 264 S.W. 396
• Parties: LAKE SUPERIOR LOADER CO. v. HUTTIG LEAD & ZINC CO.
• Court: Missouri Supreme Court

264 S.W. 396

LAKE SUPERIOR LOADER CO. v. HUTTIG LEAD & ZINC CO.

No. 24002.

Supreme Court of Missouri, Division No. 1.

July 31, 1924.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by the Lake Superior Loader Company against the Huttig Lead & Zinc Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cooper, Neel & Wright, of Kansas City, for appellant.

Charles M. Miller, of Kansas City, for respondent.

JAMES T. BLAIR, P. J.

Respondent instituted this action and recovered judgment for the contract price of three Armstrong shovels, model No. 11, freight thereon, certain spare parts, and for interest.

The second amended answer first admits the signing of the contract and denies all other allegations, and then avers that appellant's signature to the contract was induced by false representations made by respondent's salesman concerning the suitability of the shovels for the work in appellant's mine and their capacity for loading earth, rock, and ore into cans wherein these were removed from the mine; that respondent represented that the "shovels were adapted to the character of the ground, dirt, and ore in defendant's mine, and that said shovels would load from 200 to 225 cans of dirt in eight hours, and that said shovels would operate successfully and economically, and that they were practical and would operate without interruption, and that plaintiff would and did guarantee that said shovels would do this work for defendant company"; that appellant relied on these representations, was induced thereby to sin the contract, and that the representations were false. The particulars in which the shovels fell below the representations are then averred. Another averment is that appellant, with respondent's knowledge, was buying the shovels for specific work in its mine and for the work in character and quality which it had been averred respondent represented the shovels to have capacity and fitness to do, and that respondent "both expressly and impliedly warranted that its shovels were adapted to handle ore in defendant's mine, and that said shovels would load from 200 to 225 cans of dirt in eight hours, and do so economically and consecutively," and that "said shovels wholly failed to meet such requirements, and did not come up to said warranties at all"; that there was total failure of consideration; that the shovels are without value to appellant, and had been tendered back to respondent. The reply is a general denial.

Respondent offered the contract, proved the delivery of the described shovels to appellant, and appellant's refusal to pay. Appellant offered evidence which tended to prove the averments of the answer with respect to the warranty of suitability for the work and that of operative condition. Only one machine was put in operation. There was evidence of frequent troubles in getting this machine to work at all, and evidence that when it could be made to operate mechanically it demonstrated its unsuitability for the work of loading cans with sufficient speed and continuity to comply with the warranty pleaded or so that the operation was economically feasible. Respondent then offered evidence which tended to show that appellant did not give the shovel a fair trial in good faith; that the price of ore dropped between the date of the contract and the receipt by appellant of the machines, and that hand shovelers became more plentiful and less expensive; that appellant did not furnish a sufficiently heavy track, except for one 16-foot length; that only one track was provided upon which the shovel could work, whereas others were necessary, unless the shovel was to stand idle, after it cleaned up along the face beside which the track ran, until holes were drilled and more rock shot down, and this process required an hour or more on each occasion; that cans were not furnished at times because the hand shovelers who were working took them and thus exhausted the available supply and left the shovel idle for that reason, and at others the mill was shut down and loading had to be stopped for that reason; that with the mill running and sufficient cans at hand, tracks and appliances as described in the contract, a shovel would load more than 225 cans in an eight-hour shift, and this shovel did load at a greater rate of speed; that, alter the stiffness of the new machine wore off, and minor adjustments were made, as generally required with new machinery, the shovel in use worked without mechanical trouble, and was suitable for the work in appellant's mine. But one shovel was uncrated and tried. The evidence occupies about 600 pages.

It was shown that prior to appellant's purchase of the shovels one had been installed in the Montreal mine, and appellant's president and superintendent had gone to the Montreal mine to inspect it. They say the shovel was not in operation when they were there. There is evidence the superintendent had said he and the president had investigated the shovel in operation in the Montreal mine, and there was no question about its ability to load, but that the problem was to keep enough broken dirt ahead of the machine and secure good can service, and that he would attend to that.

With respect to the comparative conditions in the mines in the district appellant's then superintendent testified:

"Q. What was your object in going over to the Montreal mine? A. Mr. Victor said he had one in operation over there.

"Q. Why did you want to see one over there? A. I wanted to see it work.

"Q. Well, you were going to buy one, or thought you were, and you wanted to see the machine and see it work, didn't you? That was the purpose in going over there? A. Yes, sir.

Now about how far is the Montreal mine in miles from the Huttig Lead & Zinc mine No. 1? A. Oh, about two or three miles.

"Q. It was the same mining field at that time? A. Oh, yes.

"Q. And they had about the same conditions there in that mine that you had in your mine, didn't they? A. In what respect?

"Q. Well, in the method of mining dirt and things of that kind; the structure of the mine? A. Well, there is some slight difference in other mines in that district.

"Q. But they all encounter about the same mining difficulties, don't they, with respect to strata and structure of earth? A. No. sir.

"Q. You say there is some slight difference? What is the difference? A. Well, the formation is different for one thing. Some mines has no rough, what we call a cap rock; some mines produce more boulders than others. Some mines produce more lead and jack than others. Some mines have narrower drifts than others.

"Q. What other differences? A. Some mines has more water than others, too.

"Q. Now, take your mine in comparison with the Montreal mine, with respect to boulders and structure of that kind. How do they compare? A. I never made an investigation of the Montreal mine, so I couldn't say.

"Q. But generally the conditions are about the same, are, they not? A. No; I can't say that.

"Q. Well, you used the word there; there was some slight difference. I take it by that you mean there is not any great difference? A. Some of them are; yes, sir."

There was no offer to show like conditions in other mines with respect to the "layout" of tracks for the use of the installed shovel or to show that the tracks available complied in character with the requirements essential to successful operation as prescribed, nor that the can service was adequate to keep the shovel supplied with that sort of equipment, which was obviously necessary for continuous operation. There was no offer to show that the operators in other mines knew anything about handling machines of the kind or any other kind. In fact, the evidence tends to prove the operators had no such experience with like machines. There was no offer to show that the physical conditions were essentially the same in other mines; and, in connection with offers to prove that some, at least, of the shovels were not in operation at stated times, there was no evidence or offer to show that the mines themselves were in operation at such times. In most instances in which offers respecting like shovels in other mines were made the question was asked, an objection sustained, and an exception saved without more. The trial court stated and restated its opinion well in accord with the authorities subsequently to be cited, but this did not evoke evidence or offers of evidence tending to prove the similarity of essential conditions. The record shows several instances which seem to indicate that appellant was accepting the court's ruling, but the case will not be determined on that view.

With respect to the point that respondent offered evidence respecting other mines, and that appellant was entitled to meet this, it appears that it was shown that the three machines appellant bought were shipped in a carload of 8 or 10 machines of the same model of which the others had been sold to other mines in the district, and all were delivered about the same time. Respondent also put in evidence pictures of like machines for the purpose of Illustrating the several cycles of operation in its effort to show the jury the mechanics of the shovels and the several motions which it was capable of making. The evidence which showed where the pictures were taken was brought out by appellant.

The contract contained, among other things, a provision to the effect that it "expresses the whole agreement between the parties hereto and all previous negotiations and understandings are merged herein," and contained no express guaranty as to the character and amount of work. Appellant's president testified respondent's salesman told him the contract was an old form, and that respondent would make good the oral warranty which appellant contends was made.

Appellant assigns "that the court erred (1) in sustaining objections to questions propounded to named witnesses respecting other machines like those for the...