Von Cotzhausen v. H. W. Johns Mfg. Co.

• Decision Date: 20 September 1898
• Citation: 76 N.W. 622,100 Wis. 473
• Parties: VON COTZHAUSEN v. H. W. JOHNS MFG. CO.
• Court: Wisconsin Supreme Court

100 Wis. 473

76 N.W. 622

VON COTZHAUSEN

v.H. W. JOHNS MFG. CO.

Supreme Court of Wisconsin.

Sept. 20, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by John W. Von Cotzhausen against the H. W. Johns Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint in this action charged that the defendant is a New Jersey corporation, organized in June, 1891, and is a consolidation of a number of corporations previously existing, among which was the H. W. Johns Manufacturing Company of New York, and that the defendant company assumed all the debts, obligations, and contracts of the previous corporations which were consolidated to form the defendant; that in the year 1889 the plaintiff was erecting a business block in Milwaukee, and invited bids for the roofing, and among the same received a written proposal from one Phillip Gross, of Milwaukee, then the agent of the H. W. Johns Manufacturing Company of New York, who proposed, in behalf of said company, to construct the roof known as the “H. W. Johns asbestos roof,” manufactured by said company under a patent, for five dollars a square; that the plaintiff at first rejected said bid, and that the H. W. Johns Manufacturing Company of New York, by its Chicago agent and the said Gross, made repeated representations to the plaintiff as to the good qualities of the H. W. Johns roof (which representations are wholly set forth in the complaint, but are not necessary to be repeated here), and that the plaintiff finally, by means of such representations and relying thereon, changed his mind, and accepted said bids for the asbestos roof of the said company, the price being reduced to $4.75 per square. The complaint further alleges that the roofing was done in the summer and fall of 1890, and was entirely paid for in November, 1891, but that the roof proved to be worthless, and entirely failed in the winter of 1894, and that the representations, assurances, and warrantying of said H. W. Johns Manufacturing Company of New York, and its then agents, as to the character, quality, and durability of the material employed, utterly failed, so that an entirely new roof had to be put upon the building, and that by reason of the promises the plaintiff was damaged to the amount of $2,000, for which he prayed judgment. The answer denies that the H. W. Johns Manufacturing Company of New York ever made the contract set forth in the complaint, and denied that Phillip Gross was at any time the agent of said company, and alleged that the roofing contract set forth in the complaint was entered into between the plaintiff and Gross upon his own account. Upon the trial of the action it appeared that Phillip Gross in September, 1889, was engaged in business in Milwaukee, and had the exclusive right to sell and use the asbestos roofing manufactured by the H. W. Johns Manufacturing Company of New York, but was not the agent of said company for the purpose of making contracts to put on roofing, and that on the 6th of September he made a written bid to the plaintiff on his own account to furnish and lay complete an H. W. Johns asbestos roof for five dollars per square upon the plaintiff's building. It further appears that in the latter part of April, 1890, the H. W. Johns Manufacturing Company of New York transferred the exclusive right to use and sell their roofing in Milwaukee to Messrs. A. Monsted & Co., and that the further negotiations had with regard to the roofing were had with Monsted & Co., and resulted in the making of the following written contract on the 5th of August, 1890: “Messrs. A. Monsted & Co. agree to place the asbestos roof on Metropolitan Block, furnishing all necessary material, in first-class manner, at $4.75 per square. Work must be commenced within twenty-four hours after roof is in readiness, and finished without any unreasonable delay. F. W. Von Cotzhausen. A. Monsted & Co.” Prior to the making of this contract, one Near, a traveling salesman of the Johns Manufacturing Company of New York, had called on the plaintiff with Monsted & Co., and left with the plaintiff circulars commending the H. W. Johns roofing, and also made oral representations as to its character; but it did not appear that either Near or Monsted claimed to act on behalf of the company in making contracts, nor did it appear that either of them were authorized to make any such contracts on behalf of the company. The evidence further tended to show that the roof put upon the building by Monsted & Co. proved to be defective, and a special verdict was rendered in the action as follows: “(1) Was the defendant company organized on or about the 25th of June, 1891, and did it begin business on or about the 1st day of July, 1891, and is it a consolidation of the following previously existing corporations, namely, the H. W. Johns Manufacturing Company of New York, organized in 1887, the Asbestos Packing Company of Boston, the Calmer-Spence Company of New York, C. W. Trainer & Co. of Boston, and the Shields & Brown Company of Chicago? Answered, ‘Yes,’ by consent of counsel. (2) Did the defendant company then assume all the debts, obligations, and contracts, of every kind and nature, of each of the pre-existing companies aforesaid, including the obligations, if any, which are the subject-matter of this action? Answered by jury, ‘Yes.’ (3) ...