Sturtevant Mill Co. v. Ktngsland Brick Co.

• Citation: 74 N.J.L. 492,70 A. 732
• Parties: STURTEVANT MILL CO. v. KTNGSLAND BRICK CO.
• Decision Date: 26 March 1907
• Court: New Jersey Supreme Court

70 A. 732

74 N.J.L. 492

STURTEVANT MILL CO.

v. KTNGSLAND BRICK CO.

Court of Errors and Appeals of New Jersey.

March 26, 1907.

Error to Supreme Court.

Action by the Sturtevant Mill Company against the Kingsland Brick Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Collins & Corbin, for plaintiff in error.

Addison Ely, for defendant in error.

GARRETSON, J. The plaintiff brought its action upon the following order of the defendant, which the plaintiff has accepted: "New York, April 12, 1904. Sturtevant Mill Co., Stephen Girard Building, Pbila., Pa.: All communications should be addressed to our New York office. * * * Please deliver to our Kingsland plant the following: One set of standard centrifugal rolls, 36-in. diameter by 6-in. face, as specified in your catalogue, No. 8, page 44, you to guarantee the capacity of seven tons per hour or seventy tons per day of ten hours, to be ground fine enough to go through No. 20 mesh Dunlap screen, the price to be $1,600, F. O. B., Boston Mass., together with automatic feeder, for which, we will pay $100 additional. If, however, the feeder will not be found necessary after trial, you to give us credit for it after return of same, we to have a trial of thirty days of above specified rolls, the rolls to be erected at once after arrival at our plant at Kingsland, N. J., trial to be given at once after completion of erection. If after thirty days' trial the rolls do not prove satisfactory, we will load them on cars at our plant immediately after the expiration of above specified time. If rolls prove satisfactory, terms to be $850 at expiration of trial and $850 thirty days thereafter. You to furnish a competent man to superintend the erection of said rolls. Machinery to be shipped within ten days from the date of this order. The rolls remaining your property until paid for in full. [Signed] Kingsland Brick Company. Per M. M. Tannenbaum, Pres. Deliver no goods without this order." Also a telegram as follows: "April 19, 1904. Sturtevant Mill Company, Stephen Girard Building, Phila., Pa.: We will not hold you liable for any expenses or losses contingent with installing or operating the machines except what our order calls for. Kingsland Brick Company."

The plaintiff furnished the rolls, and they reached Kingsland April 29, 1904. Mason, the plaintiff's machinist, arrived at Kingsland May 9, 1904, to superintend the erection of the rolls. The rolls began to run June 4th. The installation of the rolls was completed June 16th. The test of the rolls to their full capacity began June 18th. The defendant tested the rolls, and July 8th Tannenbaum, the defendant's president, stated to Hallett, the agent of the plaintiff who had obtained the order, that the rolls would have to go back. July 14, 1904, defendant telegraphed the plaintiff: "Am arranging for reshipment of rolls." So far as appears, after 30 days' trial, the rolls were not loaded on cars at the defendant's plant immediately, or at any other time after the expiration of the time specified for their trial. They remained in possession of the defendant, at its works, up to the time of the trial, and have not been paid for. The trial resulted in a judgment for the plaintiff for the price agreed upon in the contract. The defendant having upon the trial moved for a nonsuit and for direction of a verdict, and both motions being denied and exceptions taken, the case for these alleged errors and others is before this court.

The defendant, by notice annexed to its plea of the general issue, claimed to recoup against the plaintiff, as damages for breach of the guaranty, moneys expended in the erection of a foundation for the rolls in question and in procuring belting for the rolls, and to recover these moneys because the rolls, after 30 days' trial, did not prove satisfactory, in that they did not have the capacity guaranteed by the contract, and the plaintiff had been notified of that fact. The answer to the plaintiff's demand for payment is that the rolls were sold with a guaranty of capacity; that there has been a breach of that guaranty, and recovery results therefrom; also that the defendant is entitled to recover from the plaintiff the expenses of demonstrating the breach of the guaranty. The contract provided that the defendant should have a trial of the rolls for 30 days, the rolls to be erected at once after arrival at defendant's plant, and the trial to be given at once after completion of erection. There is no provision in the contract that the plaintiff is to furnish and erect the foundation for the rolls, only to furnish a competent man to superintend the erection of them; and,...