Parr v. N. Elec. Mfg. Co.

• Decision Date: 21 March 1903
• Citation: 93 N.W. 1099,117 Wis. 278
• Parties: PARR ET AL. v. NORTHERN ELECTRICAL MFG. CO.
• Court: Wisconsin Supreme Court

117 Wis. 278

93 N.W. 1099

PARR ET AL.

v.NORTHERN ELECTRICAL MFG. CO.

Supreme Court of Wisconsin.

March 21, 1903.

Appeal from Circuit Court, Dane County; Robert Siebecker, Judge.

Action by William E. Parr and others against the Northern Electrical Manufacturing Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

This is an action on contract to recover the purchase price of a piece of machinery known as a “gang die,” constructed by the plaintiffs for use in the defendant's shop. The complaint alleges that the plaintiffs constructed the die at the defendant's request, at the agreed price of 40 cents per hour for the labor put thereon, and a reasonable compensation for the material used therein, amounting in all to $278.14. The answer denied the material allegations of the complaint.

It appeared upon the trial, without dispute, that in November, 1900, the plaintiffs were copartners operating a machine shop in Madison, and that the defendant was a corporation manufacturing electrical machinery in the same city, and that one Duncan was superintendent of this shop. The plaintiffs' evidence tends to show:

That early in November, 1900, the plaintiff Parr was called to the defendant's shop by Duncan, who told him that he wanted him to figure on a gang die for use in the defendant's shop. That Parr looked over the machine which had been in use at the shop, and that Duncan then asked the price of a new machine such as was wanted, and Parr told him he could fix no price, but would do the work for 40 cents an hour, and that Duncan desired him to make a plan of the machine. That Parr thereafter made a plan and showed it to Duncan, and Duncan approved it, and again wished to know the cost, and Parr again told him that he could not fix the price, but would work for 40 cents an hour thereon, and that Duncan told him to go ahead. That the understanding was that the machine was to operate satisfactorily. That the plaintiffs immediately ordered some steel and other necessary materials for the machine. That some days afterwards the plaintiffs received from the defendant the following written order:

“No. 6648. Madison, Wis., 11-5-'00.

Ford & Parr, City--M. A. Please furnish Northern Electrical Mfg. Co., at Madison, Wis., via C. & N. W. Ry., the following materials at the prices herein made: One gang die as per our drawing No. e2195 herewith. Price to be 40 cts. per hour, total cost not to exceed $100.00. Die to be subject to our approval and not to be accepted unless it operates satisfactorily.

Northern Electrical Mfg. Co.,

By A. O. Fox, Treasurer.”

That this order was not received until some days after its date, and about the middle of November, and that the material had then been received by the plaintiffs, and that work on the machine commenced about the time the written order was received. That Parr immediately telephoned to Mr. Duncan, and told him of the receipt of the order, and that he could not accept the terms therein, and that Duncan replied that he would come and see about it; that Duncan came to plaintiffs' shop on the next day, and finally told Parr to make the die regardless of the limitation in the order. That the plaintiff then proceeded to make the machine, and that Duncan came over every week to see the progress thereof, and gave directions as to details. Afterwards the following letter was received by the plaintiffs from Duncan at about its date:

“1-22-'01.

Parr & Kronke, City--Gentlemen: Replying to yours of January 21 would say that it will be all right to make the fillets on the large size shown on your templet. This is a fillet of 1.32 radius. You can therefore make the die accordingly. This is to confirm our telephone message of this morning.

Very truly,

Northern Electrical Manufacturing Co.

F. B. Duncan, Superintendent.”

That when the machine was completed the plaintiffs took it to the defendant's shop, and it was tried. That defects in its operation were found, and, after taking it back and forth several times, it was finally left at the defendant's shop in good condition, so that it would do good work, and that a bill was presented to the defendant for $278.14. That immediately after the presentation of the bill the plaintiffs received by mail the following letter from the defendant:

“6-1-'01.

Parr & Kronke, City--Gentlemen: We are in receipt of your invoice dated May 31, for $278.14, covering labor and material on gang die furnished us on our order 6648. We are very much surprised to note the charge. By reference to our order you will note that it states price to be forty cents per hour, total cost not to exceed $100.00. We presume the party who rendered the bill was not familiar with the terms of the order, and we therefore, request that you render us a correct invoice upon receipt of which we will be pleased to pass same to your credit.

Yours truly,

Northern Electrical Co.,

By A. O. Fox, Vice Prest. and Mgr.”

There was also evidence to the effect that Duncan gave general orders around the defendant's shop and employed men to work therein; that one Drohan, who succeeded Duncan as superintendent of defendant's shop in May, 1901, told the plaintiff Kronke, when the bill was presented, that the die had been accepted; that the defendant's officers refused to pay the bill as rendered.

At the close of the plaintiffs' evidence, the defendant moved that a verdict for the defendant be directed on the ground that no authority to make a contract by Duncan had been shown. This motion was overruled by the court in the following terms: “I think the relationship of the party dealing with the plaintiffs, as shown by the facts and circumstances of the case, the authority by him assumed concerning the matter from beginning to end, the surrounding facts showing that it was at the home office and shop, and the action of the company in relation to his conduct, demanded that the motion be overruled.” The testimony for the defendant tended to show that the die did not do good work, and was never accepted; that upon the presentation of the bill the defendant's responsible officers offered to pay the plaintiffs $100 for the die, and at the same time stated that it was not satisfactory, but the plaintiffs refused the offer. The defendant also offered in evidence the written contract made between it and Duncan constituting Duncan superintendent of the shop, which contract defined Duncan's duties as such superintendent, but gave him no power to purchase or contract for machinery. This contract was ruled out by the court, on the ground that the facts and circumstances which came to the plaintiffs' knowledge must determine the question of Duncan's authority. The defendant also offered to prove that the die did not operate satisfactorily to its officers, but this testimony was also ruled out. The defendant also offered to prove that the responsible officers of the company had no knowledge that Duncan had assumed to make a contract with the plaintiffs for the construction of the die at 40 cents an hour, but this testimony was excluded. The defendant also offered a copy of a requisition made by Mr. Duncan upon the storekeeper of the defendant company in the usual course of the defendant's business, as follows:

“Requisition.

+---------------------+
                ¦Dept. Mfg. ¦No. 4115.¦
                +---------------------+
                

Wanted account Mfg. Advice No. ______ Date 11-5, 189-. Instructions: Requisitions must state where Articles are to be used and must be sent to the storekeeper for endorsement before being signed by applicant.

P. O. Number. 1 gang die per drawing.

No. E2195. from Parr & Ford. Price 40 c. hour. Not to exceed $100.00 total. Die to be subject to our approval.

[Signed] F. B. D.”

Storekeeper's Indorsement: “Approved Northern Electrical Mfg. Co.,

“A. O. F.”

Upon objection this paper was also excluded. It further appeared that Duncan left the employ of the defendant in May, 1901, and he was not called as a witness.

At the close of the evidence the defendant renewed its motion to direct a verdict, but the same was overruled. A special verdict was demanded by the defendant, and the following questions were prepared therefor: “(1) Was there an agreement entered into and made between the plaintiffs, as copartners, and the defendant company, whereby the plaintiffs were to construct and furnish the material for the gang die of the kind and size as described in the testimony? (2) Was it a part of such agreement that the defendant company was to pay the plaintiffs for the construction of such gang die at the rate of 40 cents per hour for the necessary labor to construct it? (3) Was it a part of such agreement that the defendant company was to pay the plaintiffs for the material necessarily required to construct such die? (4) Was it understood and agreed by the parties to such agreement that the die was to be subject to the approval of the defendant company? (5) Was it understood and agreed that the die was not to be accepted by the defendant company unless it operated satisfactorily? (6) Did the die constructed by the plaintiffs for the defendant pursuant to the arrangement made between the parties operate satisfactorily? (7) Was the die actually approved and accepted by the...