Petersen Oven Co. v. Cap Sheaf Bread Co.

• Decision Date: 05 November 1929
• Docket Number: No. 20541.,20541.
• Parties: PETERSEN OVEN CO. v. CAP SHEAF BREAD CO.
• Court: Missouri Court of Appeals

21 S.W.2d 219

PETERSEN OVEN CO. v. CAP SHEAF BREAD CO.

No. 20541.

St. Louis Court of Appeals. Missouri.

November 5, 1929.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by the Petersen Oven Company against the Cap Sheaf Bread Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Goodbar & Gilster and Thomas P. Moore, all of St. Louis, for appellant.

Kane, Blackinton & Reid, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover on five promissory notes executed by defendant to plaintiff in sums aggregating $700. The notes were given as a part of the price of two Petersen wide mouth door patent ovens sold to defendant, and built at its bakery at 1112 North Kingshighway in the city of St. Louis. The contract price of the ovens was $3,985, all of which was paid except the amount represented by the notes sued on. Under the contract, the plaintiff agreed to furnish defendant the ovens set up complete at defendant's bakery, including the iron material, heating pipes, brickwork, all building material, and all necessary fittings, such as thermometer, steam injection pipes, smoke and steam dampers, combination oven light, steam injection pipe clear around baking chamber, and hot water heating coils, and excluding foundation, chimney, or connection with existing chimneys, steam connection, and connection for oven light, and warranted "the efficiency of the ovens, and to bake perfectly in every respect."

In its answer to plaintiff's petition, defendant sets up a counterclaim for damages for the breach of the warranty contained in the contract, alleging that at no time since the erection of said ovens have the ovens satisfactorily fulfilled the purpose for which they were sold by plaintiff to defendant, and that at no time since the erection of said ovens have said ovens baked efficiently or perfectly; that said ovens would not, and could not, and did not, heat uniformly at a temperature high enough to permit baking, but that the temperature of said ovens would continuously vary and fluctuate an uncertain number of degrees, causing some bread to be underdone, other bread to be burned, and other bread to become hard and not palatable; that said ovens, being what is known as heavy-duty ovens, were designed for and should have maintained a high even temperature over long periods of time so as to enable many batches of bread and other commodities to be baked therein without an appreciable loss of temperature, but that the ovens supplied to defendant by plaintiff did not maintain such high even temperature over long periods of time, but that the temperature would drop many degrees between batches; that this condition necessitated the starting of the batches at an extremely high temperature, causing burned bread at the first baking each day, also causing the bread to be baked too quickly, the outside of the loaves becoming brown before the interior of the loaves were sufficiently baked; that the defendant continuously notified plaintiff of the results of its attempts to use said ovens and continuously demanded of plaintiff that it reconstruct said ovens or make such alterations thereon as might be necessary or take whatever actions, if any, which could be done to cause said ovens to bake in the manner and for the purposes furnished as aforesaid and perfectly in every respect as warranted by plaintiff, but that, although plaintiff repeatedly promised so to do, and has at various times prior to May 27, 1921, made efforts so to do, plaintiff failed in the accomplishment of such purpose, and said ovens have always and still are failing to bake as warranted in the manner and respect aforesaid, and that on or about May 27, 1921, plaintiff refused to make any further efforts to cause said ovens to bake in the manner warranted as aforesaid; and defendant prays the recovery of damages for the difference between the value of the ovens as furnished and the amount paid plaintiff on the price of same, and for the value of bread spoiled and rendered unsalable, and the value of an excess of fuel used and of extra labor employed, because the ovens did not bake as warranted, as aforesaid.

The plaintiff's reply is a general denial, with the further allegation that whatever loss defendant sustained was caused by the defendant's failure to properly fire the ovens, failure to properly regulate the temperature of the ovens, failure to operate said ovens in accordance with plaintiff's instructions, failure to provide a proper chimney sufficient to furnish a proper draft, and failure to follow plaintiff's instructions as to the temperature at which the ovens should be maintained in order that same should be properly dried before using them, and by defendant's using the ovens for baking purposes prior to the time advised by plaintiff, and contrary to plaintiff's instructions.

The trial, with a jury, resulted in a verdict in favor of plaintiff for the amount of the notes sued on with interest, and also in favor of plaintiff on defendant's counterclaim, Judgment was given accordingly, and defendant appeals.

The evidence on...