Russell Grader Mfg. Co. v. Budden

• Decision Date: 08 January 1929
• Citation: 197 Wis. 615,222 N.W. 788
• Parties: RUSSELL GRADER MFG. CO. v. BUDDEN ET AL.
• Court: Wisconsin Supreme Court

197 Wis. 615

222 N.W. 788

RUSSELL GRADER MFG. CO.

v.BUDDEN ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1929.

Appeal from a judgment of the Circuit Court for Grant County; S. E. Smalley, Circuit Judge. Reversed.

Action brought September 23, 1927, to recover on two promissory notes of October 7, 1926, given on purchase of a crusher. Defendants counterclaimed. Trial March 6, 1928, and upon the special verdict as modified the court directed judgment dismissing both the complaint and counterclaim and awarding defendants costs. Plaintiff appeals.

The defendant copartners, on and prior to October, 1926, were contractors and engaged in crushing rock for road use. At this time they desired to obtain a larger rock crusher than the one they then had in use, and gave a written order to a salesman of plaintiff, a Minnesota corporation, for a crusher manufactured by the Universal Crusher Company of Cedar Rapids, Iowa. $1,000 was paid, and two notes aggregating $717.80 were then executed and delivered to the salesman. The order dated October 7, 1926, and signed by defendants, was for one No. 3 M 9x16 Universal crusher, with 18-foot G folding elevator, to be mounted on a 12-foot goose-neck medium truck; it gave the price at $1,717.80; specified that it was “rush order, must be shipped at once”; described the size of the pulley and the name of the engine; the price was f. o. b. Cedar Rapids, Iowa.

October 11, 1926, a conditional sales contract on a printed form with the particulars inserted was signed by both parties. This writing, after naming the parties, read, so far as here material, as follows:

“Witnesseth, first, that said first party (plaintiff) has delivered, and hereby agrees that it will sell to said second party (defendants) the following described property, to-wit:

Shipped to J. H. Budden & Son at East Dubuque state of Illinois * * *

Article: 1 No. 3 M 9x16 Universal Crusher with 18 ft. Folding Elevator mounted on 12 ft. goose neck, medium truck.

Price $1717.80.

Upon and after full payment therefor by said second party of the total sum of $1717.80 with interest at the rate of 7 per cent. per annum, in manner following: [Then followed the terms above specified as to down payment and notes, given as conditional security to this contract, and which are not to be construed as a settlement of this contract.]

Second. That said second party may have the use of said property during the life of this contract, and agrees to make the above payments with interest at the times and in the manner above mentioned to said first party, at State Bank of East Dubuque, Illinois, time being of the essence of this agreement, and thereupon will become the owner thereof.

Third: That the title of said property and the right of possession thereto shall be and remain in said first party until the total sum of all payments and interest shall be fully paid.

Fourth: (Provisions in case of default.)”

This was filed for record October 16, 1926, with the town clerk of the town of Jamestown, Grant county, Wis.

The crusher was delivered to defendants prior to October 28th. On that day the senior defendant wrote to the agent making the sale that it works all right and that they find that it is 8x16 instead of a 9x16, which they ordered. (This statement, 8x16, was corrected by defendants' testimony as an error, and meant 6x16.) The manufacturer's attention was called to this, and they wrote defendants, November 9th, to the effect that the machine furnished was their No. 3 M Universal, feed opening 9x16, and suggested a method of measurement to be made at the top of the jaws at their maximum opening and that it would be found to be 9x16. The season for the use of such crusher closing at about this time, the crusher was left where it was at the suggestion of the sales agent.

In March, 1927, the beginning of the new season, a mechanic was sent from the manufacturer to make a change in the back jaw of such crusher and in the pitman or part that directly operated such movable back jaw.

March 16th defendants said by letter to the agent, “The Universal Company sent a man out to fix the crusher, he put in a different jaw, it is the full width now, but it is not the crusher we ordered by putting in that jaw,” and spoke of intending to try it when the weather conditions would permit. No other change was made in the crusher by plaintiff or the manufacturer although frequent complaints were made by defendants. They continued to use the crusher and sold the one they had formerly had, to supplant which they had bought this one.

Some three months after the due date of the last of the two notes this action was started to recover on them.

Defendants answered and counterclaimed, alleging that the parties made an oral contract on October 7, 1926, for a crusher described as above, and at the price and terms stated above; and alleged knowledge by the plaintiff of the particular business of defendants and the purpose for which it was purchased; that defendants relied upon the plaintiff's skill and judgment that the machine would be reasonably fit for such purpose, and that it was so warranted; and also warranted that when properly handled it would crush rocks of a dimension of 9x16 inches and more than twice as much with the same number of men as would the old 8x12 crusher theretofore operated by defendants; that the crusher delivered was not in compliance with the terms of such contract; and that notice thereof was given by defendants; and that by default of the plaintiff to so comply with the contract the defendants were damaged. A further defense on the basis that plaintiff was a foreign...