Wade v. Donau Brewing Co.

• Decision Date: 06 December 1894
• Parties: WADE ET AL. v. DONAU BREWING CO. ET AL.
• Court: Washington Supreme Court

38 P. 1009

10 Wash. 284

WADE ET AL. v. DONAU BREWING CO. ET AL.

Supreme Court of Washington

December 6, 1894

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by F. M. Wade and others against the Donau Brewing Company and others. From a judgment for plaintiff, defendants the Weisel & Vilter Manufacturing Company and another appeal. Affirmed.

Sharpstein & Blattner, Crowley, Sullivan & Grosscup, and Ashton &amp Chapman, for respondents.

DUNBAR C.J.

The undisputed facts in this case are as follows: On the 16th day of July, 1889, one Simon Donau and James H. Barry, for the purpose of supplying a certain brewery about to be constructed on the premises in controversy with appliances to be used in the manufacture of beer, entered into the following contract with appellant the Weisel & Vilter Manufacturing Company:

"This agreement, made and entered into this sixteenth day of July, 1889, by and between the Weisel & Vilter Manufacturing Company, of the city of Milwaukee and state of Wisconsin, of the first part, and Simon Donau and James H. Barry, of Tacoma, Washington Ty., of the second part, witnesseth that said party of the first part has agreed to furnish, deliver, and erect on the premises of said parties of the second part at Tacoma, Washington Ter., of the best material and workmanship, and in complete working order and condition: One direct expansion refrigerating plant, described as follows: One 35-ton refrigerating machine of compressor size, 11"' bore, 22"' stroke. One Corliss engine 17x42"', with band wheel 12 ft., dia 19"', face-turned crowning, to receive the belt which transmits power to said second parties' line shaft. One iron gauge front, with 2 8-inch ammonia gauges, and one 8-inch steam gauge. One oil separator and receiver connected with oil drum, glass gauges, lever cocks, valves, and trimmings, erected on cast-iron brackets bolted to wall. One submerged condenser with tank 12' 9"'-7' 6"'-7', containing 2,800 ft. of 1"' extra-strong pipe, made in coils of one continuous length, without joints, except at each end, where they connect to manifolds. Manifolds made of 3 1/2"' double extra-strong pipe, with extra-strong nipples and steel couplings. One ammonia storage tank, with valves and trimmings. All the necessary 2"' evaporating pipes, with double-slotted disks, to cool 152,000 cubic feet of cellar space from 0 to 3 Reaumer, in the following rooms: 1 fermenting room, 42-78-15'; 1 fermenting room, 42-78-15', less 1 ft.; 1 chip-cask cellar, 42-78-114'; 1 racking room, 20-50-9'. One direct expansion ammonia beer cooler of iron cooper, covered pipes of 20 ft. length, 14 pipes high, which is to be placed below second parties' Bandelot cooler. Thirty-six attemperators of 1"' iron pipe, with valves and swing joint at each end. The said first party to make the connections from attemperators to sweet-water tank, which is to be furnished by said second parties. One ammonia coil, with feed and suction valve. All the ammonia connections to above coil. Also first charge of ammonia and thirty days' run of the whole plant by one erecting engineer. All labor and material necessary to erect the plant on said second parties' foundations. The party of the first part agrees to hold the said second parties harmless in any infringement suit which may arise from the use of its machinery. The said parties of the second part agree to provide a suitable room for the erection of the foregoing machinery; to do the mason and carpenter work, steam, water, and pipe connections, and to furnish the necessary light, oil, steam, and water. It is further agreed that the parties of the second part shall, on receipt of the above machinery, cause the same to be insured against fire in good and responsible fire insurance companies, and keep the same insured until the fulfillment of this agreement, for the full amount of its value, and have the policies of insurance assigned and delivered to the party of the first part. The party of the first part agrees to have the machinery hereinbefore mentioned in operation and good working order on or before November fifteenth, 1889, provided no unnecessary delay is caused by unavoidable accidents or strikes, or by the railroad carrying the machinery, and providing the party of the first part has free and unrestrained access to the rooms and cellars wherein the machinery is to be erected, which is hereby agreed to by said party of the second part. In consideration of the foregoing conditions, the parties of the second part agree to well and truly pay or cause to be paid to said parties of the first part the just and full sum of sixteen thousand dollars ($16,000), as follows: Two thousand dollars when said second parties are notified by said first party that the machinery is ready to be shipped; three thousand dollars on completion of machinery, less amounts paid out by said second parties for freight, labor, and material; for the balance of eleven thousand dollars, said second parties are to give one promissory note, payable at the Second-Ward Savings Bank at Milwaukee, Wis., within six months from date of completion, with interest at the rate of six per cent. per annum, and with exchange indorsed by responsible parties acceptable to said first party. It is further agreed that the title, ownership, and right of possession of the aforesaid machinery shall be and remain in the party of the first part until the whole amount above provided, of money and notes, is fully paid, as above agreed, when the same shall vest in the parties of the second part. And it is further agreed that if the said party of the first part, in case of default of the parties of the second part to make the payments aforesaid, at the times and in the manner hereinbefore provided, shall take and resume the possession of the aforesaid machinery, it shall be the duty of such first party

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