Meinshausen v. A. Gettelman Brewing Co.

• Decision Date: 15 October 1907
• Citation: 133 Wis. 95,113 N.W. 408
• Parties: MEINSHAUSEN v. A. GETTELMAN BREWING CO.
• Court: Wisconsin Supreme Court

133 Wis. 95

113 N.W. 408

MEINSHAUSEN

v.A. GETTELMAN BREWING CO.

Supreme Court of Wisconsin.

Oct. 15, 1907.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Otto Meinshausen against the A. Gettelman Brewing Company to recover for machinery furnished and installed in defendant's brewery. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with direction to dismiss.

This action was commenced January 23, 1904. The original complaint, verified February 18, 1904, alleged, in effect, that the defendant is a Wisconsin corporation; that September 10, 1897, the defendant entered into a written contract with the American Copper, Brass & Iron Works, an Illinois corporation, wherein and whereby that corporation agreed to manufacture, erect, and deliver in the brewhouse of the defendant “one complete ideal countercurrent wort cooling plant or apparatus,” therein fully described; also “one steel hop-jack,” therein described; also “one copper false bottom 10 feet wide and 12 feet long with brass frames”; also “85 feet of copper wort pipe”; also “one 12-foot steel beam support weighing 3,500 pounds.” That original complaint further alleged “that for all of the apparatuses and material manufactured, sold, and delivered by said American Copper, Brass & Iron Works to said defendant, and for the work performed in and about the erection and completion of said several apparatuses, the said defendant agreed to pay to said American Copper, Brass & Iron Works the sum of $2,500 at the time of the completion of said contract, and further agreed to deliver to said American Copper, Brass & Iron Works a certain Baudelot cooler and connections, then in their possession of the value of upward $475 at the same time. This plaintiff further alleges that said American Copper, Brass & Iron Works did, pursuant to said contract, manufacture, deliver, and erect in the brewery of said defendant the aforesaid wort cooler, steel hop-jack, steel I-beam, copper false bottom, and copper wort pipes, etc., and in every and all respects fully completed and performed all things required by it to be done under and by virtue of said contract, that said apparatuses and material were delivered, and said work was completed on or about 12th day of March, A. D. 1898. This plaintiff further alleges that although said American Copper, Brass & Iron Works delivered all of the apparatuses and material, and performed all things required by reason of said contract, yet nevertheless the defendant refused and neglected to pay to said American Copper, Brass & Iron Works the whole or any part of the contract price, to wit, $2,500, and also failed and neglected to deliver to said American Copper, Brass & Iron Works the Baudelot cooler and connections, of the value of upward $475, as required by its said contract; that by reason of the premises there become due and owing from said defendant, the A. Gettelman Brewing Company, to said American Copper, Brass & Iron Works, the sum of $2,975, together with interest thereon from March 12, 1898, no part of which has ever been paid.”

That original complaint further alleged, in effect, that July 2, 1902, the American Copper, Brass & Iron Works was adjudged an involuntary bankrupt; that April 1, 1903, William T. Fenton was appointed trustee in bankruptcy thereof; that November 9, 1903, the said trustee in bankruptcy, pursuant to an order in bankruptcy, sold and assigned said claim of said bankrupt to one George H. Meinshausen, who November 10, 1903, sold and assigned said claim to this plaintiff as the owner and holder thereof, and demanded judgment therein for $2,975, with interest thereon from March 12, 1898, with costs and disbursements. March 7, 1904, the defendant answered such original complaint by way of admissions, denials, and counter allegations, to the effect that the things so contracted for were to be all completed for the sum of $2,500 and the delivery of the defendant's Baudelot cooler mentioned; that the cooling apparatus so furnished did not work perfectly; that the entire apparatus was to be so furnished, delivered, and sold to the defendant on 60 days' approval, and, if the same failed to do its work properly, the same should be removed at the expense of said manufacturer; that all the work, labor, machinery, apparatus, and materials specified or referred to in said complaint were included in and to be furnished under such contract or agreement, and not otherwise; that the wort cooler, steel hop-jack, steel I-beam, copper false bottom, and copper wort pipes, etc., did not conform with the agreement or contract in that the same did not work perfectly; that within 60 days after the erection and delivery of what was represented to be the things contracted for the defendant disapproved of and rejected the same, for the reason that they did not conform to the agreement or contract, did not work perfectly, and within the time the defendant informed and notified the American Copper, Brass & Iron Works of such disapproval and rejection, and directed it to take away and remove the same from the defendant's premises.

Upon the trial of the action, and on December 17, 1906, the plaintiff, by leave of the court, filed an amended complaint verified December 12, 1906, by changing it from a complaint upon express contract to one on quantum meruit, and annexed the written contract thereto as a part thereof, which declares that all the things therein mentioned should be so furnished all complete for the sum of $2,500 and the Baudelot cooler mentioned, and contained these agreements: “It is further agreed and understood that this cooling apparatus shall do its work perfectly. A hop straining and aerating apparatus shall also be furnished in connection with the same, all included in the purchase price. This cooling apparatus is sold on sixty days' trial. Should the same fail to do its work properly, the same shall be removed at the expense of the manufacturer.” And such amended complaint alleges that said cooling apparatus was reasonably worth $1,600, and that all the rest and residue of the apparatus, goods described in the contract, and the work necessarily performed under the contract at the defendant's instance and request were reasonably worth $1,375, and alleged a reasonable value of the respective parts thereof. The defendant's objection to the allowance of such amendment being overruled by the court...