Skinner v. Kerwin Ornamental Glass Co.

• Decision Date: 15 December 1903
• Parties: SKINNER, Respondent, v. KERWIN ORNAMENTAL GLASS COMPANY, Appellant
• Court: Missouri Court of Appeals

77 S.W. 1011

103 Mo.App. 650

SKINNER, Respondent, v. KERWIN ORNAMENTAL GLASS COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 15, 1903

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.

REVERSED AND REMANDED.

STATEMENT.

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 $ 145.00, 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 $ 7.00 for repairing said fan on March 7th, a total of $ 152.00.

"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 him that he wanted something to take out the dust in the room caused by said 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 as proposed; and you further find that plaintiff furnished said fan and piping therefor to defendant and placed the same in defendant's factory under defendant's direction, and in accordance with such plans and drawings, in a skillful and workmanlike manner, you must find for the plaintiff on that part of his demand, in the sum of $ 145, together with interest thereon at the rate of six per cent per annum from the twenty-first day of March, 1902, the date of filing this suit."

And at the request of defendant, gave the following instruction:

"If the jury believe from the evidence that the plaintiff was shown by the president of the defendant its sand-blast room when same was filled by dust from the workings of said blast machinery, and plaintiff was told by said president that he wanted something to take out the dust from said room raised by said sand-blast machinery, and that plaintiff said that he would furnish a fan or blower with piping and attachments that would exhaust or remove said dust, for the sum of $ 145, and that defendant was ignorant as to the kind of apparatus proper for such purpose, and relied on the skill and judgment of defendant as to same, and that defendant then and there accepted such offer, then there was an implied warranty that said articles were reasonably fit for said purpose, and if you further believe that said fan, piping and attachments as furnished by the plaintiff were not reasonably fit for the above purpose, and that defendant as soon as the apparatus was ready for operation, or three or four days after first using said fan apparatus, notified plaintiff to put same in working order or to remove it, then you will find for the defendant, although you should believe from the evidence that plaintiff mailed to the Krenning Glass Company by mistake a proposal addressed to said company, which was afterwards received by the defendant, to furnish a fan with attachments for the sum of $ 145 without containing any express warranty as to the work to be done by said fan and attachments, or without stating the purpose for which said apparatus was intended.

"If the jury believe from the evidence that the plaintiff examined the room of the defendant used for sand-blast machinery while same was being operated, and was then told by the representative of defendant that it wanted something that would take out from said room the dust caused by the operation of said machinery, and that plaintiff said that he would furnish a fan with attachments that would do so for $ 145, and that the defendant was without skill in regard to such a matter, but relied upon the experience and judgment of plaintiff, and that such offer was then accepted by the defendant, then there was an implied warranty on the part of the plaintiff that said apparatus should be reasonably fit for the aforesaid purpose, and if you further believe that such apparatus, or fan with attachments, when furnished were not reasonably fit for such purpose, and that as soon as defendant had an opportunity to test said apparatus, or within three or four days thereafter, it notified plaintiff to make said apparatus so that it would take out said dust or remove said apparatus from said premises, and that same was subject to plaintiff's order, and that plaintiff failed to pay any attention to said notice, then your verdict will be for the defendant, although the written proposal furnished by the plaintiff to defendant does not state the purpose for which said fan and attachments were intended, or contain any express warranty in regard thereto.

"If the jury believe from the evidence that the plaintiff was a manufacturer or dealer in exhaust and blow-piping and that he agreed to furnish and set up in the sand-blast room of the defendant a blower or fan with piping and attachments to be applied for exhausting dust therefrom, and that plaintiff knew the defendant wanted same for the said purpose, and that the defendant had no opportunity to test said fan, piping and attachments or apparatus before same was put in operation and that the defendant was inexperienced in regard to such apparatus, and relied upon the plaintiff's...