Underfeed Stoker Co. v. Detroit Salt Co.

• Decision Date: 12 January 1904
• Citation: Underfeed Stoker Co. v. Detroit Salt Co., 135 Mich. 431, 97 N. W. 959 (Mich. 1904)
• Court: Michigan Supreme Court
• Parties: UNDERFEED STOKER CO. v. DETROIT SALT CO.

97 N.W. 959

135 Mich. 431

UNDERFEED STOKER CO. v. DETROIT SALT CO.

Supreme Court of Michigan

January 12, 1904

Error to Circuit Court, Wayne County, George S. Hosmer, Judge.

Action by the Underfeed Stoker Company against the Detroit Salt Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Bowen, Douglas, Whiting & Murfin, for appellant.

William J. Gray and L. S. Trowbridge, Jr., for appellee.

MONTGOMERY J.

This is an action to recover the price of two underfeed stokers supplied to defendant under a written contract. This contract consisted of specifications and proposal for the installation of the Improved Jones Underfeed Mechanical Stokers, and provided that the plaintiff should supply, and purchasers erect in position, two Improved Jones Underfeed Stokers under the boilers of the Detroit Salt Company, and would also supply and erect in position two sets of dead plates made especially to suit the boilers. The contract further provided that the defendant would supply the necessary bricks, fire clay, mortar, and cement, and do all the necessary brickwork for the installation of the stokers, and would make the necessary alterations to the fronts of the boilers for the proper installation of the stokers. The plaintiff also agreed to supply, and purchaser erect in position, one blower of sufficient capacity for the two stokers. Plaintiff also agreed to furnish the services of an expert to install the stokers. The contract also provided for tests to be made of the increased economy from the use of these stokers as compared with hand-fed boilers. These comparative tests were to be made under the terms of the contract specifically prescribed, and the stokers were to be sold upon a guaranty of an increased economy of 15 per cent. The stokers were put in as agreed, and tests were made, which the defendant claimed were unsatisfactory, for the reason that it was claimed that the water meter did not properly register, and the defendant asked for another test. Plaintiff offered to make a new test, but upon condition that the first test should remain the governing test. In reply to this proposition, which was by letter, the defendant wrote that it could not see, under the circumstances, any reason for making the test, and that what it expected of the plaintiff was that it should send an expert to make another test of the stoker after weighing the water, and an additional test with hand firing; that if, upon this test being made, the saving of 15 per cent. was shown, defendant would pay the expense of the test, and would accept the stokers. In response to this, plaintiff sent a Mr. Humphrey to the defendant, with the purpose of having a test made but, as its testimony tends to show, without giving him authority to make a new governing test. The defendant's testimony shows that the agreement made with Mr. Humphrey was that there should be a new governing test, and the fact is that a new test was entered upon; but, while the test was being made, some of the machinery of the defendant gave out so the test could not be completed. Plaintiff thereupon refused to postpone the test and complete it...