Mine Supply Co. v. Columbia Min. Co.

• Decision Date: 21 August 1906
• Parties: MINE SUPPLY CO. v. COLUMBIA MINING CO.
• Court: Oregon Supreme Court

86 P. 789

48 Or. 391

MINE SUPPLY CO. v. COLUMBIA MINING CO.

Supreme Court of Oregon

August 21, 1906

Appeal from Circuit Court, Baker County; Samuel White, Judge.

Action by the Mine & Smelter Supply Company against the Columbia Gold Mining Company. From a judgment in favor of defendant plaintiff appeals. Reversed, and new trial ordered.

The plaintiff is a dealer in mining machinery and supplies at Denver, Colo., and the defendant is a mining corporation in Baker county, in this state. In August, 1904, the plaintiff was advised that the defendant desired to remodel and enlarge its mill and mining plant, and thereupon sent an agent to sell to it such machinery and appliances as it might need. After looking over the mine, and being informed by the defendant's officers of the character of ore to be reduced, and that it contemplated the removal of 10 stamps from its mill and the substitution of another kind of crushing machinery or mill therefor, prepared a list of machinery and appliances, including "one latest improved five-foot Huntington mill," which, on behalf of the plaintiff, he agreed to sell and the defendant agreed to purchase for the aggregate sum of $3,450, f.o.b. Denver, $450 of which was to be paid with the order, $1,000 when the goods arrived at Sumpter, the railroad station nearest the mine and $2,000 within 30 days thereafter. The contract was in writing, and among other things stipulated that the plaintiff assumed "no liability for damages on account of delays nor can we make any allowance for repairs or alterations unless same are made with our written consent. It is agreed that no liability shall attach to us on account of damages or delays caused by such repairs or alterations." The defendant began immediately to remove the old machinery and to make preparation for the reception and installation of the new, but it was not shipped in time to reach Sumpter until about the 28th of October, when the $1,000 payment was made as agreed upon, and the machinery taken to the mine and set up. A part of the machinery was satisfactory, but the Huntington mill, as defendant alleges, was not of the "latest improved," and was so defectively constructed that it could not be successfully operated. After it had been set up and the defects discovered, plaintiff was advised thereof and sent its manager to the mine, who upon an examination of the mill admitted that it was imperfectly constructed and agreed to replace the defective parts with new ones, which was done, but the defendant says they were no more satisfactory than the original. Plaintiff was again notified, and sent an expert machinist to ascertain the difficulty and to remedy the same; but, according to defendant's theory, he was unable to do so, and it was compelled to and did finally supply the defective parts by purchasing from another house. It refused to pay the balance due on the contract, and this action was commenced to recover the same. The defendant seeks to set off against the contract price the damages sustained by reason of the alleged breach of the contract. It had judgment in the court below, and the plaintiff appeals, assigning error in the admission of testimony and the giving and refusal of certain instructions.

Albert Backus, for appellant.

John L Rand, for respondent.

BEAN, C.J. (after stating the facts).

It is unnecessary to notice the several assignments of error in detail. They involve substantially two questions: (1) Whether there was an implied warranty on the part of the plaintiff that the Huntington mill sold by it to defendant would successfully reduce the ores of defendant's mine, and was fit and proper for the purpose intended; and (2) the measure of damages, if there was a breach of the contract by plaintiff. There was no express warranty of the character or capacity of the mill, but the court instructed the jury that if plaintiff was aware of the purpose for which it was to be used by the defendant, the law implies a warranty that it should be suitable and fit for that purpose, and, if it was not, defendant is entitled to offset against the purchase price any damages it may have suffered on account of a breach of such warranty. We do not understand such to be the law. Where one contracts or agrees to supply an article to be applied or used for a particular purpose, and the buyer has no opportunity of inspection, but relies upon the judgment and skill of the seller, and not his own, there is an implied warranty that the article shall be reasonably fit and suitable for the purpose intended. Morse v. Union Stockyard Co., ...