Vt. Farm-Mach. Co. v. Batch-Elder

• Decision Date: 28 July 1896
• Citation: 68 Vt. 430,35 A. 378
• Parties: VERMONT FARM-MACH. CO. v. BATCH-ELDER et al.
• Court: Vermont Supreme Court

35 A. 378

68 Vt. 430

VERMONT FARM-MACH. CO.

v. BATCH-ELDER et al.

Supreme Court of Vermont. Windham.

July 28, 1896.

Exceptions from Windham county court; Tyler, Judge.

Action in assumpsit by the Vermont Farm-Machine Company against Francis Batchelder & Co. Judgment for defendants, and plain tiff excepts. Exceptions overruled.

The plaintiff brought suit for the purchase price of one No. 1 U. S. cream separator, furnished under written contract with the defendants. The material part of this contract was as follows: "The Vermont Farm-Machine Company agrees to furnish Francis Batchelder & Co. one No. 1 U. S. cream separator, complete, with belt, one set of balls, one steel step, one set rubber rings, one 6 horse power Dutton vertical engine, or one 0 horse power Watertown horizontal engine, all to be placed and set up in the separator station at ITainfield, Vt., and guarantied to do as good work as any other separator in the market, and to skim to one-tenth of one per cent. of fat, or less; the machine to be properly operated. By 'properly operated,' it shall be understood to mean that the machine shall be run at a speed of 7,200 revolutions per minute, and operated in every way in the same manner as usual in the ordinary method followed in the course of separating each day. In consideration of the separator being guarantied as above, Francis Batchelder & Co. agree to pay the Vermont Farm-Machine Company the sum of $450 for the outfit, complete, within thirty days from the time it is set up and tested: provided, that the said separator shall, for the thirty days, continue to do the work guarantied, under the conditions described. It is further agreed by the Vermont Farm-Machine Company that if, at any time within one year from the acceptance of the said separator by Francis Batchelder & Co., said separator fails to regularly and uniformly produce the results guarantied by the Vermont Farm-Machine Company under the described conditions, after the Vermont Farm-Machine Company have had an opportunity to correct any imperfections in the separator, they (the Vermont Farm-Machine Company) are to remove the separator from the station, upon the request of Francis Batchelder & Co. In case of the removal of separator, the Vermont Farm-Machine Company are to pay Francis Batchelder & Co., within thirty days from the date of removal of said separator, a sum equal to the amount originally charged to Francis Batchelder & Co. for separator and fittings peculiar to same." The evidence of the plaintiff tended to show that before the execution of the above contract the parties had some conversation in reference to a separator, and a contract was drawn up by the plaintiff and submitted to the defendants. That contract was not satisfactory to the defendants, and the one in suit was afterwards drawn up by a member of the defendant firm. The evidence of the plaintiff further tended to show that the ordinary and usual temperature at which milk was separated was from 80° to 90°; that, if the milk was separated at that temperature, the separator in question would fully satisfy the guaranty of the plaintiff; that the defendants had refused to make the test with the milk at that temperature, but had insisted upon its being tested with the milk at a temperature of from 70° to 72°, and had declined to receive the separator and pay for the same upon the ground that when so tested it would not fulfill the guaranty, but was inferior to another separator, known as the "No. 1 Alpha." As bearing upon the point whether the test should be made at the higher temperature, as claimed by the plaintiff, or at the lower temperature, as claimed by the defendants, one of the agents of the plaintiff testified that before the contract was signed, and at the time of its execution, he informed the defendants that the ordinary temperature at which milk was separated was from 80° to 90°. In reply to this, one of the defendants was permitted to testify that the said agent of the plaintiff made no statement whatever as to the temperature at which this separator was operated, but that he (the defendant) then told said agent of the plaintiff that the defendants required a separator which would separate milk at a temperature of from 70° to 72°, and that the plaintiff so understood it when the separator was sold and the contract signed. To the admission of the above testimony the plaintiff excepted. The evidence of the defendants tended to show that butter made from cream separated at a temperature of from 70° to 72° was better, and would keep longer, than that made from cream separated at a higher temperature; that the defendants were familiar with this fact when the contract was made, and informed the agent of the plaintiff of their ideas in that respect. It appeared that the No. 1 Alpha separator, in comparison with which that of the plaintiff was mainly tested, would separate cream successfully at a temperature of from 70° to 72°; and the evidence of the defendants tended to show that at the time of making the contract they had an Alpha separator actually set up and in operation at Montpelier, with which they were then separating cream at a low temperature. As tending to show that the separator of the plaintiff did not fulfill the guaranty, the defendants were allowed to give evidence of the fact that the plaintiff's separator required more fuel for the same amount of work than the Alpha separator. To the admission of this testimony the plaintiff excepted. The separator in question was to be erected at Plainfield, Vt. It appeared that, at the same time that the separator in question was sold to the defendants, they purchased of the plaintiff another separator, identical in every respect with this, which was to be erected at Montpelier, Vt., and their testimony tended to show that it was then agreed that the test between the separator of the plaintiff and the Alpha should be made at Montpelier. It further appeared that the plaintiff sent several agents to Montpelier for the purpose of representing it in the making of these tests between the Alpha machine and this machine, one of whom was a Mr. Remington, who at the time of the trial had become the agent of that company which was the proprietor of the Alpha machine. Mr. Remington was produced as a witness by the defendants, and testified that the tests in which he participated showed unfavorably to the machine of the plaintiff, that he so informed the plaintiff, and that the plaintiff endeavored to have him exchange the separator in question for another of their separators, of a later and more approved type; that he attempted to make the change, but was denied permission to do so by the defendants. The witness Remington produced, in the course of his testimony, certain letters and telegrams written to him by the plaintiff while he was at Montpelier, engaged in making the test, in reference to such test, and these letters were admitted in evidence against the exception of the plaintiff. The witness also testified that, in reply to these letters and telegrams, he had written the plaintiff as to how the two machines compared, and that these letters would be favorable to the defendants. Thereupon the defendants requested the plaintiff to produce these letters. This the plaintiff declined to do, unless so directed by the court. The court did thereupon order the plaintiff to produce this correspondence, and the same was produced and introduced in evidence. To the order of the court compelling it to produce these letters, the plaintiff excepted. The defendants were allowed to show the declarations made by Mr. Remington and the other agents of the plaintiff in the making of the tests at Montpelier, which were made at the time, and in reference to those tests. To the admission of these declarations the plaintiff excepted. One James, a witness produced by the plaintiff, was inquired of, upon cross-examination, whether he was the agent of the plaintiff, and whether he received a commission upon separators sold by him, to which he replied in the affirmative. The defendants were then permitted, against the exception of the plaintiff, to show by him that the amount of this commission was 10 per cent. In the course of the cross-examination of N. G. Williams, the manager of the plaintiff firm, and a witness produced by it, the following questions were asked and answered, and the following exception taken: "Q. You began to feel your machine was not good for anything there, and you wanted to lay it to somebody else, didn't you? A. No, sir. Q. ...