Vermont Farm-Mach. Co. v. Batchelder
| Decision Date | 28 July 1896 |
| Citation | 35 A. 378,68 Vt. 430 |
| Parties | VERMONT FARM MACHINE COMPANY v. FRANCIS BATCHELDER & CO |
| Court | Vermont Supreme Court |
MAY TERM, 1896.
Assumpsit. Plea, the general issue. Trial by jury at the September term, 1895, Windsor county, TYLER, J., presiding. Verdict and judgment for the defendants. Plaintiff excepts.
Judgment affirmed.
Taft J., being absent in county court, did not sit.
L. M. Read and Haskins & Stoddard for the plaintiff.
The separator was to be tested and to continue for thirty days to do the work guaranteed under the conditions described. The issue was whether the separator answered the guarantee.
I. The plaintiff gave testimony that, at the time the contract was signed, he explained that by the term "in the usual and ordinary method " as regards the temperature of the milk was meant eighty to ninety degrees in winter and seventy degrees on an average in summer. This testimony was admitted against the exception of the defendants. It opened the door for them to give evidence of what was said on the subject on that occasion. Nor was any of the testimony excepted to, given by them, outside the scope of the subject opened by the plaintiff. It only gave the reason they had for insisting as they say they did that the term must mean at seventy to seventy-two degrees. The contract and evidence furnish another ground on which the defendants had the right to have the separator operated with the milk at seventy or seventy-two degrees in the winter. It was guaranteed to do as good work as any other separator in the market. The Alpha Separator was then in the market, and the main competitor of the separator in contention. The evidence tended to show that that separator did good work in the winter, when operated with the milk at this temperature, and that the cream thus produced made a better quality of butter. Hence, the defendants had a right to have it tested with the milk at this degree unless the term "in the usual and ordinary method" was to restrict the guarantee as claimed by the plaintiff's testimony. The charge on this testimony cannot be complained of by the plaintiff. By this testimony the plaintiff asked to have its guarantee limited by the construction, which it said would be placed on these words, to a test with the milk at eighty to ninety degrees in the winter when compared with the Alpha. If the admission of this testimony was an attempt to read into the contract something that was not there as contended by the attorney for the plaintiff, it was allowed at the asking of the plaintiff. The exceptions do not raise the question whether this testimony of the plaintiff was properly admitted and that question is not considered.
II. The plaintiff excepted to testimony admitted to show the power and fuel required to operate the separator as compared with the same required to operate the Alpha. He contends that the guarantee "to do as good work as any other separator in the market and to skim" etc., relates not to the economy or expense of doing the work, but to its quality, or that it would skim as much milk and as clearly of fat as any other separator on the market. The subject matter of the contract was the sale of the separator. The guarantee was with reference to its value when compared with other separators then in the market. It was not the intention of the defendants in requiring, nor of the plaintiff in giving the guarantee to bind the defendants to keep and pay for the separator, if by the test, it was found that it skimmed the milk as clearly of fat and did the work as rapidly as any other separator in the market, but at much greater expense. It was intended that by the guarantee the defendants should secure a separator as good or valuable, everything being considered, as any other in the market, and one which fully met the requirements expressed in the guarantee. When the subject of a contract is the sale of a machine guaranteed to do as good work as any other like machine in the market the value of the machine when compared with other like machines depends upon whether it can do the same amount and quality of work at the same expense. If it cannot it does not do as good work within the meaning intended by the parties as the other.
III. On the day before the contract in contention was made, the parties thereto made another conditional sale and purchase of another No. I United States Cream Separator to be set up and tested by the side of the Alpha Separator in the defendants' factory at Montpelier. The two separators conditionally sold by the plaintiff to the defendants were in every respect alike and were set up and operated very nearly concurrently, and were to be tested by the same agents of the plaintiff. The defendants' testimony tended to show, that it was understood between the parties, that the tests between the two separators bargained for by the defendants, and the...
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