Phelps-Biglow Windmill Co. v. Piercy

• Decision Date: 07 June 1889
• Citation: 21 P. 793,41 Kan. 763
• Court: Kansas Supreme Court
• Parties: THE PHELPS & BIGELOW WINDMILL COMPANY v. FREDERICK PIERCY

21 P. 793

41 Kan. 763

THE PHELPS & BIGELOW WINDMILL COMPANY v. FREDERICK PIERCY

Supreme Court of Kansas

June 7, 1889

Error from Johnson District Court.

ON June 5, 1885, the Phelps & Bigelow Windmill Co. and Fred Piercy entered into an agreement about the erection of a windmill with various attachments, on Piercy's land. The company insists that the entire contract between the parties is in two written instruments--one a statement made by Kelsey, the duly-authorized agent of the company; the other an order for the windmill, attachments, etc., signed by Piercy. He claims there was a parol agreement in addition to the written instruments, which was substantially that the agreement set forth in his written order should only take effect when he was satisfied with the working of the mill. The statement of Kelsey, after omitting the letter-heading of plaintiff company, is:

"LENEXA KAS., June 5, 1885.--This is to certify that I have let Mr Fred Piercy have one I. X. L. windmill on trial, at list prices.

S. W KELSEY."

The order of Piercy, after directing what articles should be delivered, and the price of each, the manner of erection etc., provides:

"If you accept this order and ship me the goods and materials ordered above for such erection and improvement, it is with the distinct understanding, and is a part of this order, that if the windmill does not work well for thirty days after its erection, I am to notify you within said thirty days and give you thirty days after receipt of such notice by you in which to remedy the defect; and if you cannot make it work well you are to remove the windmill and release me from the amount which I have agreed to pay, opposite the above. A defect in any one article used on this erection and improvement is to affect price and settlement of that article only. . . . It is understood that this order, if accepted by you, embodies all the agreements there are between us of any nature whatsoever."

In compliance with this order the windmill was shipped, and erected upon defendant's farm. Among other things ordered was a grinding attachment, listed at $ 45, and a churn attachment without any value set against it. Defendant was a dairy farmer, milking at that time about fifty cows; this windmill was placed so that it pumped water from a spring one hundred yards away to a milk tank near the house, and after the water had passed through this tank, used for cooling milk, it passed down to his corral, and there ran into another tank or trough to water his cattle. There is quite a volume of testimony showing that the grinder was unsatisfactory--almost useless--and that the defendant had never been able to use the churn successfully. Some weeks after the windmill had been erected and had been on trial, the defendant telegraphed to the company at Kansas City that it was not satisfactory and that the company must come and take it away. It appears that upon the 30th of July following, two agents of the company went to the farm of defendant to secure a note for the payment of the windmill, and to remedy any defect in the mill or its attachments. At that time the defendant was at work in the hay field quite a distance from the windmill. After a great deal of altercation and controversy, he stated that the pump was not working to suit him because the water would not run in the pipes, as the agents of the company testified; and they further state that at that time lie made no complaint of' the grinder or churn; in rebuttal the defendant substantially corroborated their statements. These agents went to the windmill without defendant, and found the pipes clogged with leaves, and soon cleared them and the water ran through freely. Upon the trial of the case the defendant testified that it pumped water all right, but complained of the grinder and churn. A long time after the thirty or sixty days would have expired under the order of defendant, he complained to the company of the failure to grind corn and churn butter.

The windmill company...