Skinner v. E. F. Kerwin Ornamental Glass Co.

• Decision Date: 15 December 1903
• Parties: SKINNER v. E. F. KERWIN ORNAMENTAL GLASS CO.
• Court: Missouri Court of Appeals

77 S.W. 1011

103 Mo. App. 650

SKINNER v. E. F. KERWIN ORNAMENTAL GLASS CO.

Court of Appeals at St. Louis, Missouri.

December 15, 1903.

SALES — CONDITIONS — EVIDENCE — IMPLIED WARRANTY—PURPOSE INTENDED —EXPERT TESTIMONY.

1. In an action for the price of certain appliances sold by plaintiff to defendant, proof that the appliances were worthless for any purpose whatever, and that defendant was ignorant of the kind of appliances needed, and relied on plaintiff's judgment, was competent on the question of implied warranty.

2. From the fact that apparatus ordered was intended by the purchaser for a particular purpose known to the seller, an implied warranty arose that it was reasonably fit for such purpose.

3. If a fan and piping were sold for the purpose of exhausting or taking out dust from a room in the purchaser's factory, and the seller knew the purpose for which it was intended, and the purchaser relied on the seller's judgment, the seller could not recover if the appliance was not suitable, and he was so notified within a reasonable time.

4. In an action for the price of a fan and piping sold to defendant to exhaust or remove dust from its factory, caused by the working of sand-blast machinery, evidence as to what would be a suitable apparatus, and of defects in the one furnished, was competent as tending to show that that furnished was entirely worthless, and was also competent in aid of the defense that the purchaser relied on the seller's judgment.

5. The matter involved questions not within common experience, and it was suitable that the jury have the aid of expert testimony.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by George J. B. Skinner against the E. F. Kerwin Ornamental Glass Company. Judgment for plaintiff, and defendant appeals. Reversed.

Frank K. Ryan, for appellant. J. Carter Carstens, for respondent.

REYBURN, J.

This proceeding was begun by filing in the office of a justice of the peace of the city of St. Louis the following complaint:

                  "Plaintiff states that the defendant is
                and was at the times herein mentioned a
                corporation duly incorporated under the
                laws of this state
                  "Plaintiff states that defendant is indebted
                to him in the sum of .........................  $145
                as per written proposition submitted to
                defendant, to and for putting in a certain
                fan and piping selected by defendant from
                American Blower Catalogue (February
                21, 1902)
                  "Plaintiff further states that there is a
                further charge of..........................        7
                for repairing said fan on March 7th.            ____
                                                                $152
                

"Plaintiff further states that he has completed said contract composed of said written proposition and order to do the work, that he has furnished the labor and material in accordance therewith, and that the defendant company has refused and failed to pay all or any part of the same."

The printed abridgment of the record displays the following history of the jury trial in the circuit court: Plaintiff offered evidence tending to support the allegations of the petition, including evidence that plaintiff had made to defendant a proposition in writing to furnish a fan, with piping, according to drawings, plans, and specifications therefor, and as shown by the catalogue of the American Blower Company, both mentioned in the petition, for the price of $145, and without express warranty, and defendant instructed plaintiff to put such fan in its factory as proposed; that plaintiff furnished the fan and piping to defendant, and placed them in defendant's factory under the latter's direction, and in accordance with such plans and drawings, in skillful and workmanlike manner; that plaintiff later, at request of defendant, replaced a blade of the fan, the reasonable price of which would be $7. Defendant introduced evidence tending to prove that plaintiff was shown by its president its sand-blast room when it was filled with dust from the workings of sand-blast machinery, and informed by him that he wanted something to take out the dust in the room caused by such sand-blast machinery; that plaintiff was experienced in the business of furnishing such fans, piping, and apparatus for exhaust purposes, for such purposes as removing dust, foul air, etc., from premises, and said that he would furnish a fan or blower, with piping and attachments, that would exhaust or remove the dust from the room for the sum of $145, and defendant then accepted such offer; that the fan, piping, and attachments installed were not reasonably fit for the purpose of defendant, and as soon as such apparatus was ready for operation, and within three or four days after using it, defendant notified plaintiff either to put it in working order or to remove it; that by error plaintiff had mailed and addressed to the Krenning Glass Company a proposal, which, after above conversation between plaintiff and defendant's president, was received by defendant, to furnish a fan with attachments for the sum of $145, not containing any express warranty of the work to be done by such fan and attachments, and not stating the purpose for which the apparatus was intended; that plaintiff knew the purpose for which defendant intended to use the fan, piping, and attachments, and defendant had no opportunity to test them before they were put in operation, and the fan, piping, and attachments were worthless for defendant's purpose. Defendant also offered to prove that these mechanical appliances, as then constructed and located upon defendant's premises, were worthless for any purpose whatever, which latter testimony was objected to by plaintiff, and excluded by the court. Defendant offered testimony tending to show that when purchasing the fan it was ignorant of the kind of apparatus proper to remove the dust from its sand-blast room, and had relied on the judgment and skill of the plaintiff to furnish such apparatus or fan, piping, and attachments as would accomplish such purpose, but plaintiff's objection to this testimony was sustained by the court. Defendant also tendered the testimony of experts to establish what would be a suitable exhaust apparatus for the purpose of removing dust from the defendant's sand-blast room, and to assign the reasons why the plaintiff's fan and piping were unfit for such purpose, and to show the proper and usual construction of such fan, piping, and apparatus therefor; all of which the court excluded upon plaintiff's objection. Defendant further offered testimony that it did not request plaintiff to repair the fan, and the blade was broken while the fan was being tested.

The court, of its own motion, charged the jury as follows: "That if they find from the evidence that plaintiff made a proposition in writing, with plans and drawings, all as introduced in evidence, to the defendant, to furnish a certain fan as shown by the American Blower Company's catalogue introduced in evidence, with piping therefor, according to the terms of said proposition and plans and drawings, and to put the said fan up in defendant's factory according to said plans and drawings for the price and sum of $145, and without warranty of said fan, express or implied, as defined by other instructions herein given; and that defendant thereupon told plaintiff to put said fan in defendant's factory...