Milwaukee Tank Works v. Metals Coating Co. of Am.

• Decision Date: 03 April 1928
• Citation: 218 N.W. 835,196 Wis. 191
• Parties: MILWAUKEE TANK WORKS v. METALS COATING CO. OF AMERICA.
• Court: Wisconsin Supreme Court

196 Wis. 191

218 N.W. 835

MILWAUKEE TANK WORKS

v.METALS COATING CO. OF AMERICA.

Supreme Court of Wisconsin.

April 3, 1928.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Circuit Judge. Reversed.

Action begun on the 6th day of June, 1924, by the Milwaukee Tank Works against the Metals Coating Company of America to recover money paid for the use of a patented device on the ground that the device did not comply with an implied warranty. From a judgment for the plaintiff, the defendant appealed.

By a contract in writing the defendant Metals Coating Company leased to the plaintiff tank works a device to be used in coating castings with zinc. The lease was for the period of one year. It contained no express warranty.

The jury found that the defendant failed to furnish a device reasonably fit and suitable for the purposes intended, when properly operated, and that, before entering into the contract, the plaintiff tank works informed the defendant company that the device was hired for the purpose of coating cast iron with zinc more efficiently and economically than the process of galvanizing then used by the plaintiff.Fawsett & Shea, of Milwaukee (C. F. Mikkelson, of Milwaukee, of counsel), for appellant.

Armand J. Tuteur, of Milwaukee, for respondent.

STEVENS, J.

[1] 1. The first question presented is whether there was an implied warranty that the device would accomplish the purpose for which it was purchased. It was a special mechanism procured to perform a special service. This fact serves to distinguish the case from those in which the buyer purchases an article which is well known and defined in the commercial world like a cream separator, a gang plow, or a vacuum cleaner. La Crosse Plow Co. v. Helgeson, 127 Wis. 622, 623, 106 N. W. 1094;La Crosse Plow Co. v. Brooks, 142 Wis. 640, 643, 644, 126 N. W. 3;Ohio Electric Co. v. Wisconsin Light & Power Co., 161 Wis. 632, 634, 635, 155 N. W. 112.

“The distinction seems to be between the manufacture or supply of an article to satisfy a required purpose and the manufacture or supply of a specified, described, and defined article. * * * In the former case there may be an implied warranty, but in the latter there is none.” Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 125, 58 N. W. 232, 234 (41 Am. St. Rep. 33).

“Where the buyer expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.” Subdivision 1 of section 121.15 of the Statutes.

This statute is declaratory of the common law that has been in force since Wisconsin became a state. Getty v. Rountree, 2 Pin. 379, 388, 54 Am. Dec. 138.

The jury found that the plaintiff did not rely upon the skill and judgment of the defendant in making the lease for the device. The court changed this answer and held that there was an implied warranty.

The officers of the plaintiff tank works did not make the lease until they had an opportunity to see the device in operation and asserted that they would not make the lease until they had satisfied themselves that it was what they wanted. But it appears from an examination of the device that it is a complicated and delicately adjusted mechanism which was procured to accomplish a definite purpose, which was known to both parties when the lease was signed. As was said by this court more than a half century ago, with reference to a much less complicated device, a fanning mill, nothing short of an actual trial or experiment would determine whether the device would perform the work for which it was procured.

“As well might an unskilled person be required to ascertain and take notice at his peril whether a watch will keep time by looking at its cases or machinery and the parts of which it is composed, when in treaty with the manufacturer for it, and when the manufacturer knows it is wanted to keep time, and sells it for that purpose, and receives a fair price for a good article. It would be a strange doctrine to apply to such a case, if the watch turned out upon trial to be worthless, that the purchaser's eyes were his guide,...