Error
to circuit court, Muskegon county; Albert Dickerman, Judge.
Action
on contract by Robert R. Turner against the Muskegon Machine
& Foundry Company. There was judgment for plaintiff, and
defendant brings error. Reversed.
Only
one-half of the cost of printing the record is allowed, on
account of its unnecessary length, containing, as it does
the entire testimony, including the remarks of counsel in
court during the trial.
The
other facts fully appear in the following statement by GRANT, J.:
Plaintiff's
cause of action is based upon two contracts; one written, the
other verbal. The written contract consists of a proposition
made by plaintiff and accepted by defendant, and is as
follows: "I will put you up one of my oil gas producers
complete; also one of my gas furnaces for melting pig-iron
complete, on 30 days' trial, for the sum of thirty-two
(3,200) hundred dollars. This includes stack and everything
ready for use. After thirty days' trial, it is
satisfactory, you to pay me one thousand ($1,000) dollars,
balance in sixty days. I am not to put another melting
furnace in Muskegon county, Michigan, for any other company
or person." The acceptance on the part of the defendant
was written across the face of this proposition. April 20,
1891, Howell visited plaintiff at Columbus, Ohio, and
plaintiff claims that he then made a verbal contract with the
defendant to put in another gas producer for $1,400, without
any conditions. The evidence on his part supports the claim.
The defendant's claim and evidence are to the effect that
this second gas producer was to be put in upon the same terms
as the other. It appears that the defendant was delayed in
the construction of the building, and the furnace and the two
gas producers were not completed by him until the 25th of
July. There was delay in getting material to make the trial,
of which the defendant notified plaintiff by letter, August
19th, whereupon plaintiff wrote to his agent, who
superintended the work for him, to come home. Other
correspondence passed between the parties in regard to this
delay, but finally tests were made in the presence of the
plaintiff on the 23d, 24th, and 25th and 26th of September,
1891. Plaintiff claims that these tests were satisfactory;
the defendant, that they were not. October 30, 1891, plaintiff received a telegram from the defendant,
stating that the furnace was not satisfactory, and notifying
him to remove it from the premises after he had paid the
freight and charges the defendant had against him. He
testified that this was the first notice that he received
that the defendant was not satisfied. He at once replied,
expressing surprise, insisting that the furnace was all
right, and asking, if there was anything wrong, why they did
not send him word before. He went to Muskegon, and on
November 12th he wrote out, signed, and gave to the
defendant, through Mr. Howell, its manager, the following:
"After seeing Mr. Howell this A. M., he agreed to give
the furnace another trial of twenty days, to commence the
trial as soon as possible from this date. After the
twenty-days trial, if the furnace works all right, the
Muskegon Machine and Foundry Co. is to accept it. If it does
not do the work required, then they are not to accept it. The
trial is to be made on malleable iron." Plaintiff wrote
out the proposition, from which the above was copied on a
typewriter by the defendant's clerk. The two are alike,
except that the first read "we agreed," instead of
"he agreed," and did not contain the closing
sentence of the second, viz. "the trial is to be made on
malleable iron."
The
claim of the defendant, and the issues involved, are very
clearly set forth in the statement prepared by
defendant's counsel, and at their request read to the
jury. It reads as follows: "The defendant claims, and
has introduced testimony tending to show, that prior to April
6, 1891, the plaintiff was advised of the kind of business in
which the defendant proposed to engage. That the defendant
desired in its foundry an appliance to melt iron for gray and
malleable iron castings. That the plaintiff, being so
advised, recommended as fit for such purpose a device
consisting of a gas-producing machine, which he has invented
and a certain kind of furnace, which he proposed to
construct, and stated that by the use of such device the
defendant could make a saving of from 25 to 40
per cent. That in consequence of such recommendations and
statements and other recommendations and statements made by
plaintiff on the 6th day of April, 1891, the plaintiff was
invited by the defendant's representative to reduce to
writing a proposition for furnishing such device. That the
plaintiff thereupon reduced to writing, and that the
defendant accepted the proposition of that date, which has
been introduced in evidence, and that thereafter, and on or
about the 20th day of April, 1891, the parties contracted for
a gas-producing machine to furnish fuel for the
defendant's annealing ovens and boilers; said
gas-producing machine to be furnished under the same
conditions as were expressed in the written proposition of
April 6th. That thereafter, and during the summer of 1891,
the plaintiff constructed such device for melting iron, and
also the gas-producing machine referred to in the contract of
April 20th. That such appliance for melting iron, being
tested by trial, changes, alterations, and additions were
suggested and made by the plaintiff, from time to time, to
and including about the 12th day of October, 1891, which
changes, alterations, and additions were made by the
plaintiff for the purpose of adding to the capacity and
effectiveness of said appliance for melting iron; and the
defendant claims that until that date such appliance cannot
be said to have been completed, nor then, unless by trial it
proved effective for the purpose for which it was
constructed. That thereafter said appliance for melting iron
was tried and tested, but that it failed to work
successfully, and did not work to the satisfaction of the
defendant, of all of which the plaintiff was fully advised.
That when the last test was made, in October, neither party
to the contract understood that the furnace, or any part of
the melting apparatus, was in the condition in which it ought
to be accepted by the defendant. That thereafter, and on the
28th day of October, 1891, the plaintiff sent a telegram to
the defendant's foreman, J. H. Sautter, saying, 'Put
in small heats until I come next Monday noon.' That the
defendant's representative being shown such dispatch, and
because the tests which had been made up to that time were
unsuccessful and unsatisfactory to the defendant, the
defendant, on the 30th day of October, 1891, notified the
plaintiff by telegram to the effect that his furnace (meaning
thereby the whole apparatus for melting iron, including the
gas machine) was not satisfactory, and to remove it from the
premises, after paying freight and charges against it. That
the plaintiff well understood the purport and meaning of said
telegram, and that by the term 'furnace' was included
the entire apparatus, as the said apparatus had been so
called in their correspondence, negotiations,
and talk concerning its operations. That the plaintiff
replied to such telegram by letter, and thereafter, and on
the 12th day of November, 1891, again visited the defendant,
and had a conversation with Mr. Howell, defendant's
manager, concerning the gas producers, melting furnace, and
annealing ovens. That the fact that the annealing ovens had
not been tested was then mentioned, and the reason why they
had not been tested was stated by Mr. Howell to plaintiff to
be because the furnace for melting iron has not been a
success, and that the defendant was therefore unable to test
the annealing oven, or the gas-producing machine in
connection therewith. That as soon as castings could be
procured for that purpose the annealing ovens would be
tested, and that the plaintiff agreed to such arrangement.
That it was then agreed between the plaintiff and Mr. Howell
to give the furnace another trial of 20 days. That before the
making of such agreement Mr. Howell had expressed to the
plaintiff that he must soon visit the west, and that it was
understood between them that the trial referred to in the
agreement of November 12th was not to be made until after his
return. That within a very few days after November 12th Mr.
Howell went to Colorado. That during his absence the
plaintiff wrote letters requesting payment for the
gas-producing machine which had been constructed for use in
connection with the annealing ovens and boilers, and
threatening suit unless the same was paid. That soon
thereafter, and on, to wit, about the 23d day of November,
his claim against the defendant was placed in the hands of
his attorneys for collection. That Mr. Howell returned to
Muskegon about the 1st of December thereafter, and
ascertained that the plaintiff's claim had been placed in
the hands of an attorney. That he thereupon wrote the letter
of December 2d, which was mailed to and received by the
plaintiff a few days thereafter. That such letter was
received by the plaintiff, and that by such letter the
plaintiff was again fully informed that such appliance, so
far as it had been tested, was unsatisfactory to the
defendant. That a test was made of the annealing ovens within
the time contemplated by the parties, and as soon as suitable
castings could be procured for such purpose, and that the
gas-producing machine in connection with such annealing ovens
was thoroughly tested, failed to do its work, and proved
unsatisfactory to the defendant, of all of which the
plaintiff was...
